Board of Directors Rights > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: Board of Directors Rights

Prev Next

You are not authorized to post a reply.

Author

Messages

LarryS3

Posts:0

06/30/2007 1:11 PM
I am a Member at Large in an HOA in Arizona. We have 5 members on our BOD. I am a dissenting voice on a number of topis. Because of this I am not receiving information on some important topics being discussed and presented at Board meetings. Most of these discussion take place in emails between board members. I cannot find a specific law or opinion on this matter. Our Bylaws and the Arizona State Statutes address members rights to information, but I cannot find anything for Boards of Directors rights?

PaulM
(Pennsylvania)

Posts:1347

06/30/2007 1:22 PM
LarryS3: What do your assn's official docs dictate regarding the role of a 'member at large' as part of the BOD?

JudithC
(Virginia)

Posts:253

06/30/2007 2:38 PM
In theory I would suspect that you have the same rights as anyone else on the board, at least you would in our association. I believe that email is being abused a lot in the running of associations now. In effect, the board is meeting via email, and in your case, excluding you from that meeting. If your state has open meeting laws they are certainly circumventing the whole spirit of these laws by this practice. The odd thing, of course, is how can you get in on these email meetings? They can always say that their emails are just personal emails between friends. I'm about ready to believe that no board business should be done via email as the abuses for this are rampant. You could hardly be left out of anything if all business was done at the board meeting.

JohnC10
(Arizona)

Posts:106

06/30/2007 2:51 PM
How can you force people to include you in their discussions, for that matter why would someone want to be included where they are not welcome? If a subject comes up for vote that you have no or limited knowledge why not just abstain or motion to postpone the vote until you can research the subject and make an informed decision? I have noticed that due to a lack of overall member participation the board tends to form their own committees by default amongst themselves to discuss and research issues prior to voting at an open meeting. Much of it is done via email. I used to have a problem with this because I thought that this type of board interaction should only happen at an open meeting. After much consideration I came to the conclusion that since no one else wanted to volunteer why shouldn't the board be allowed the latitude to cut through 'the fat' in a practical manner to make decision time- board meetings flow quickly and smoothly? It seems logical and it's not hurting anyone.

HaroldS1
(Arizona)

Posts:314

06/30/2007 4:01 PM
Larry, if you have proof of your board's conducting business in violation of the open meeting law, you can file a complaint with the Arizona Office of Administrative Hearings. http://www.azoah.com/ . I'm not sure why they would flirt with the open meeting law and bother to keep you out of the loop since they apparently have enough votes to offset your opposition. You need to be sure your vote is recorded by name in the meeting minutes. Harold

BradP
(Kansas)

Posts:2491

06/30/2007 7:11 PM
JohnC: The reason you can force yourself into discussions is called Open Meeting laws and it is a good thing even if your HOA has poor participation. Arizona seems to be on the cutting edge for HOA's, discussing topics over email is a clear violation of open meeting laws and the board should be warned and then reported if they continue. When you start letting boards cut through the "fat" that is when you will get runaway boards. There are checks and balances for a reason, I wouldn't encourage renegade boards.

JohnC10
(Arizona)

Posts:106

06/30/2007 8:01 PM
Ninety-five plus percent of the membership doesn't care how the decisions are made as long as they are made. Regardless of what the law says, good for an HOA that has found a way to get the work done with as little effort as possible without doing harm. Just because the legislature is bringing up the rear when it comes to dealing with the use of technology doesn't mean its not a viable option for communication among board members. If a minority someone wants to rock the boat and make everyone work harder to get to the same end than I suppose that's their perogative. But ya know, life is tough enough without spreading grief.

JudithC
(Virginia)

Posts:253

06/30/2007 8:36 PM
I think it a bit shocking that someone would contend that if a board member doesn't agree with the majority that they should hang up their hat. It is a frightening thought for associations in general and exactly the kind of thinking that gives them a bad name. It is always faster to be dictatorial, I admit, and I am an impatient person myself, but it sure goes against everything I believe our country stands for. And yes, just because 95% of the membership doesn't care doesn't make it right. It is unfortunate that the members choose to ignore the association unless actions directly affect them, and somehow that is the nature of the beast. But, ignoring inclusiveness eventually gets the board to the situation that no one at all will get involved (why in the world would you just to be a rubber stamp?), and the board eventually tires of doing it all themselves. Guess what, that is what they were asking for when they decided to exclude everyone but their own little clique.

LarryS3

Posts:0

07/01/2007 10:39 AM
Unfortunately, the Attorney General of AZ has stated an opinion that the "Open Meeting Laws" do not apply to HOA's. However, he does recommend thar HOA's follow the spirit of the Open Meeting Law. Other than hiring an attorney, I see no way of forcing the other Directors to give me all info discussed.

JohnC10
(Arizona)

Posts:106

07/01/2007 11:22 AM
" When the conduct of men is designed to be influenced, persuasion, kind, unassuming persuasion, should ever be adopted. It is an old and a true maxim, that a 'drop of honey catches more flies than a gallon of gall.'" -Abraham Lincoln --From the February 22, 1842 Temperance Address

JacquwlynJ
(California)

Posts:1

07/01/2007 11:28 AM
Dear Larry I am in a simular situation here in California. I have several residents who back me and I am trying to find out how to get acess to our common grounds property including a bolted shut maail slot at office? If you have any suggestions could you please pass them on? If I get any I will gladly send information to you. At this point we are seeking legal help. I recently filed a complaint and got reprimanded.
Attachment: 17128055571.doc

HaroldS1
(Arizona)

Posts:314

07/01/2007 12:14 PM
Larry - Can you please cite the exact Arizona Attorney General's opinion you mentioned with date and opinion number. I have looked thru some of his recent opinions and found nothing. But I did find this opinion http://www.azag.gov/opinions/2005/I05-004.pdf regarding a school board, in which he states: "Board members must ensure that the board's business is conducted at public meetings and may not use e-mail to circumvent the OML requirements." (OML = Open Meeting Law.) Furthermore, ARS 33-1804 under Planned Communities is explicit that all meetings are open to all members except for four spelled out instances. I would appreciate that information please. Harold

BradP
(Kansas)

Posts:2491

07/01/2007 12:32 PM
JohnC: Wait until dues are raised without notifying the membership or another controversial issue passes. Yes, 95% of people don't care until it affects their wallet, and at that point you better watch out because that 95% of people will be looking for blood. As someone who was on a board I went by the book because I am not in favor or getting sued or going to jail.

JohnC10
(Arizona)

Posts:106

07/01/2007 1:26 PM
As the HOA watchdog the angry mob really doesn't concern me as I'm the one that would usually incite them. It's an effective tool for as you noted the board tends to pay the angry mob due respect especially in comparison to a lone ranger. Personally, I'd rather be doing other things on a Tuesday night than sit through a three hour meeting listening to the board debate whether it's time to replace the irrigation timer or trash can in the park. Let 'em get all the trivialities out of the way prior to the meeting and get right to the ayes and nays when they sit down at the table. If the new guy wants to be welcomed into the fold then maybe he should work a little harder at gaining the confidence and respect of his co-workers.

LarryS3

Posts:0

07/01/2007 2:47 PM
Terry Goddard Attorney General Office of the Attorney General State of Arizona 1275 West Washington, Phoenix, Arizona 85007-2926 HOMEOWNER ASSOCIATIONS AND THE OPEN MEETING LAW The Attorney General's Open Meeting Law Enforcement Team (OMLET) receives a number of calls each year alleging that homeowner associations have violated Arizona's Open Meeting Law (ARS. §§ 38-431 through -431.09). Because the Open Meeting Law does not apply to homeowner associations, OMLET created this quick information guide to help identify the laws that currently do apply to meetings of homeowner associations. Under the Open Meeting law, "[a]ll meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings." A.R.S. § 38-431.01(A). Arizona law defines a "public body" as: the legislature, all boards and commissions of the state or political subdivisions, all multi-member governing bodies of departments, agencies, institutions and instrumentalities of the state or political subdivisions, including without limitation all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision. Public body includes all quasi-judicial bodies and all standing, special or advisory committees or subcommittees of, or appointed by, such public body. ARS. § 38-431(6). A homeowner association does not satisfy the definition of "public body" because it is not a political subdivision, is neither a multi-member governing body nor an instrumentality of a political subdivision, and is neither a corporation nor an instrumentality whose board of directors is elected by a political subdivision. See Ariz. Att'y Gen. Op. 188-055. Because a homeowner association does not meet the definition of a "public body" in ARS. § 38-431(6), it is not subject to the Open Meeting Law. Id. However, in 1994 the Arizona Legislature enacted ARS. § 33-1804 and required that "all meetings of the [homeowner] association and board of directors are open to all members of the association" except for any portions of a meeting relating to four exempted topics (employment, legal advice, litigation, and enforcement matters). Also, the homeowner association must supply notice of its meetings to all members, unless the articles of incorporation and bylaws provide otherwise. See AR.S. § 33-1804(B). The Attorney General, County Attorneys, and other public lawyers are not authorized to enforce the laws relating to homeowner associations. A homeowner association can have great influence in community affairs, and because its decisions affect its members, its members should always be invited to attend and observe the association’s deliberations. Thus, although not subject to Arizona's Open Meeting Law, homeowner associations are strongly encouraged to always conduct public meetings which are properly noticed. See Ariz. Att'y Gen. Op. I97-012. Updated 9/2006 424484

JudithC
(Virginia)

Posts:253

07/01/2007 3:09 PM
Larry, as I read the opinion it is true that the general open meeting law doesn't apply, but then the legislature passed a open meeting law just for HOAs (§ 33-1804 )but what the attorney general is saying is that he is not responsible for enforcing it. That puts Arizona where Virginia is, there is such a requirement, but it is not enforceable except by civil suit. Is that your interpretation of all of that? (Where are you guys getting these opinions, I wonder if Virginia has a similar source)

LarryS3

Posts:0

07/01/2007 3:42 PM
Yes I think you are right. I think meetings are open to members, but not the general public. We do have an Adminisrtative Court in AZ that will enforce cases such as this. I beleive it costs $550. Another issue I have is our Board does not feel that committee meetings need to be open meeting also. For example, we have just started an ACC Approval Committee and they want to do all approvals by email only. Thus eliminating anyone from attending meetings.

HaroldS1
(Arizona)

Posts:314

07/01/2007 3:59 PM
Judith - I agree with your interpretation of the Arizona Attorney General's opinion. He may not think he is responsible for enforcing it, but there is a new state agency - Office of Administrative Hearings - that can enforce state statue 33-1804. It would cost Larry $550 to file the complaint which the HOA would have to reimburse him for if the judge agrees with Larry. That's why I said originally, if Larry has documented proof of his board's making decision outside the open meeting he should take it to the OAH. In addition to enforcing state laws, the OAH can also enforce CC&Rs that are being ignored by the board - or vice versa the board can take the member in front of the OAH too. Judith - I don't know Virginia law but I found the Az Attorney General's opinions by googling Arizona Attorney General and then searching for and clicking on "opinions". Not sure if your state has the same set up. Also found by googling under Arizona Revised Statues I bookmarked the section of Arizona Revised Statues covering planned communities. HOAs also fall under some corporation statues too. Harold

JudithC
(Virginia)

Posts:253

07/01/2007 4:17 PM
I'm glad we are in agreement on what that law says. Thanks Harold for telling me how you came up with these opinions. They are fascinating and hopefully VA. will have them online also. I do know the part of the code that applies to HOAs and follow the legislature also when they are meeting, so have that part of it covered. You would think the state would worry more about informing both boards and homeowners about the law, but they don't. In Virginia there is the non-stock corporation act which covers HOAs (if they are incorporated) also, then there is some goofy thing that they have that puts us under control of the realty board. That costs us $25/year and for that there is a liaison and a web page with an out of date version of the law on it. Impressive. They did figure out that they should start spending the money though and gave out grants. Joseph's website was under that, as I understand it, but then Virginia said goodbye, we will take care of it, and now cobwebs are growing on it. I had poked around and found some of the stuff that was done with the grants just out of interest, but doubt if many people have. What a system!

JohnC10
(Arizona)

Posts:106

07/01/2007 5:15 PM
Posted By HaroldS1 on 07/01/2007 3:59 PM ...there is a new state agency - Office of Administrative Hearings... Harold Actually they were established in 1996 and HOA complaints are filed with the Department of Building & Fire Safety.

HaroldS1
(Arizona)

Posts:314

07/01/2007 6:14 PM
Atually John, HB2824 which made it possible to resolve disputes between homeowners and HOAs, became law on Sept 21, 2006. Here is a copy of the memo from the Dept of Fire, Building and Life Safety detailing this new law. I'm not sure what happened in 1996 that you are referring to. Harold JANET NAPOLITANO ROBERT BARGER Governor Director DEPARTMENT OF FIRE, BUILDING AND LIFE SAFETY 1110 WEST WASHINGTON, SUITE 100 PIMA COUNTY PHOENIX, ARIZONA 85007 400 WEST CONGRESS, SUITE 121 (602) 364-1003 TUCSON, ARIZONA 85701 (602) 364-1052 FAX (520) 628-6920 (520) 628-6930 FAX OFFICE OF ADMINISTRATION * OFFICE OF MANUFACTURED HOUSING * OFFICE OF STATE FIRE MARSHAL September 1, 2006 In 2006, the Arizona 47th Legislature passed legislation in the form of HB2824 that provides the people of Arizona a venue to homeowners and condominium and planned community associations (HOA) to resolving disputes. These administrative procedures do not limit the rights of the parties to pursue matters in the legal system, but provides an alternative. This legislation becomes law on September 21, 2006. Until the legislation becomes law, we cannot process any applications because we do not have the legal ability to do so. Thus, any forms or applications received before September 21, 2006, will not be processed until then. There are a few points of the legislation that need to be made perfectly clear. • The $550 Filing Fees are NON-Refundable, by law. • Only Homeowner can file a complaint; renters or non-owners cannot. • The complaint must be against the condominium or planned community association. Not directors, representatives, other homeowners, management companies or such. Remember this is new to everyone, so we will try to make the implementation of the legislation as smooth as possible, but patience may be required while we work through any problems. Thanks for your understanding. Sincerely, Robert Barger, Director Department of Fire, Building and Life Safety

JohnC10
(Arizona)

Posts:106

07/01/2007 6:41 PM
Posted By HaroldS1 on 07/01/2007 6:14 PM I'm not sure what happened in 1996 that you are referring to. Harold The AZOAH was established.

DonM1
(Arizona)

Posts:2

07/01/2007 7:46 PM
33-1804. Open meetings; exceptions A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the association and board of directors are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak before the board takes formal action on an item under discussion in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following: 1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment. 2. Pending or contemplated litigation. 3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association. 4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association. B. Notwithstanding any provision in the community documents, all meetings of the association and the board shall be held in this state. A meeting of the association shall be held at least once each year. Special meetings of the association may be called by the president, by a majority of the board of directors or by members having at least twenty-five per cent, or any lower percentage specified in the bylaws, of the votes in the association. Unless otherwise provided in the articles or bylaws of the association, not fewer than ten nor more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member. The notice shall state the time and place of the meeting. A notice of any special meeting of the members shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The failure of any member to receive actual notice of a meeting of the members does not affect the validity of any action taken at that meeting. C. Unless otherwise provided in the articles or bylaws of the association, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the corporation is prima facie evidence that notice was given as prescribed by this section. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the time and place of the meeting. The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

JohnC10
(Arizona)

Posts:106

07/01/2007 8:10 PM
Homeowner Petitions Against an Association It comes down to- do you have sufficient evidence to prove your allegations at a hearing? The judge may also consider how you obtained the evidence. In other words, were you at one time involved in these email meetings and then after becoming disgruntled decided to hold the board to a higher standard?

DavidR5

Posts:0

07/23/2007 4:08 PM
Are board discussions on a message board such as this, where all Association members can read whats being discussed allowable? It seems the spirit of the law would be that the discussion be public.

RobertG
(Arizona)

Posts:505

07/23/2007 4:55 PM
Posted By DavidR5 on 07/23/2007 4:08 PM Are board discussions on a message board such as this, where all Association members can read whats being discussed allowable? It seems the spirit of the law would be that the discussion be public. Are you asking that if the board members participate in some type of forum discussion (electronic), can that be considered violating open meeting? - I would say no since the board is not meeting all at the same time. They actually may be logged into the discussion at the same time, but they are not technically meeting together. There are some exceptions like speaker phones that make it appear to be all together even though they are not physically, but they aren't when it comes to electronic forums. If you are asking can the board make decisions on a discussion forum, then I would answer no. It is the same thing as making decisions via email and unless there is something specific allowing it, usually is not allowed.

DavidR5

Posts:0

07/23/2007 5:18 PM
Posted By RobertG on 07/23/2007 4:55 PM Posted By DavidR5 on 07/23/2007 4:08 PM Are board discussions on a message board such as this, where all Association members can read whats being discussed allowable? It seems the spirit of the law would be that the discussion be public. Are you asking that if the board members participate in some type of forum discussion (electronic), can that be considered violating open meeting? - I would say no since the board is not meeting all at the same time. They actually may be logged into the discussion at the same time, but they are not technically meeting together. There are some exceptions like speaker phones that make it appear to be all together even though they are not physically, but they aren't when it comes to electronic forums. If you are asking can the board make decisions on a discussion forum, then I would answer no. It is the same thing as making decisions via email and unless there is something specific allowing it, usually is not allowed. Seems like you have it backwards to me. Any correspondance is considered a meeting is more than a quorum of Board members is involved. Email is not permitted as a means of "discussion", but I believe its because Association members do not have access to that conversation. Any communications that includes a majority of Board members that is "done in private" is a violation. Electronic communications is murky. However the spirit of the open meeting laws is that the discussions be held in public, that is, that association members can witness the pros and cons and decision-making process. An open forum allows for that. In fact, if you allow Association members to ask questions about the discussions, then you've logically included all of the requirements of a physical meeting. Lets face it, its impractical for Boards to only discuss things at physical meetings. There are too many issues to discuss.

TracyT
(Maryland)

Posts:228

07/23/2007 5:30 PM
At a minimun, it seems that during the course of investigation networking with industry to arrive at a basis for descision is relavent. If you put a question out for opinion why not say so? Professionaly, I do it all the time. It's almost like they think I have three heads until I tell them that I do. And present the written opinions. Even then sometimes they don't listen . . . I would just add to this string that investigating and conversing over e-mail is one thing. However, I feel that the directors should be prepared to discuss their findings at the "open meeting". Also, it is not appropriate for a 'selected few members' of the BOD to be privy to this info. it must be distributed equally to all members of the BOD for investigation.

DavidR5

Posts:0

07/23/2007 5:32 PM
What is the enforcement mechanism for Unit Owners who have a board that conducts all of their business in private?

You are not authorized to post a reply.

Forums > Homeowner Association > HOA Discussions > Board of Directors Rights