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Board conducting unnoticed email meetings and voting on non-emergency open-meeting issues

I need some helps with the wording I might use when requesting records of unnoticed email meetings for the purpose of considering and voting on non-emergency open-meeting subject matter. I think the only records would be email conversations – and I’m not sure how to request these.

Looking at DeBoer v. Turtle Rock III HOA which specifically dealt with the issues of whether a board is permitted to conduct unnoticed email meetings for the purpose of considering and voting on non-emergency open-meeting subject matter.

When I asked about the issue of meeting and voting in email, the Community Manager verbally informed us that Title 10 permits the directors to take action without a meeting if their vote is unanimous.

I assume the Community Manager intended to refer to A.R.S 10-3704 Action by written consent. Which does not exempt HOA’s from the requirements of A.R.S 33-1804 “Open Meetings”.

However, in my opinion, the Community Manager may be incorrect. The tribunal in DeBoer v. Turtle Rock III HOA, concluded that the Board’s “practice of taking actions in the absence of a meeting by obtaining unanimous written consent of the Board members via email violated the charge provision of A.R.S 33-1804.”

Thank you.

13 Responses

  1. Dennis Legere

    Mike;
    You are absolutely correct.

    Your community manager is correct in what he said, but wrong in his application of that fact to HOA’s. The non-profit corporation act Title 10 of the Arizona statutes section 3821 allows a board of a non-profit corporation to take action without a meeting with unanimous consent. In fact based on that long standing statute most HOA bylaws include the exact same provision.

    But Title 33 Chapters 9 and 16 apply open meeting laws to Condominiums (33-1248) and Planned Communities (33-1804). There are no open meeting laws for non-profit corporations. And what the courts have long held , is that when general statutes conflict with more specific statutes the more specific statutes prevail. Any aspect of Title 33 Chapter 9 or 16 that conflicts with statutes in Title 10 the provisions in Title 33 chapter 9 or 16 prevail.

    Arizona open meeting laws for Condo’s and Planned Communities’ require that any meeting of the board must be noticed and must allow the members of the community to attend and participate in those meetings. The only time action by a board can be taken outside of a noticed and open meeting is for emergency meetings, that cannot wait for the 48 hour prior notice. Many attorneys and community managers also confuse the issue further by saying that executive session meetings can occur by e-mail. While again technically accurate because the members are excluded from attending and participating in executive meetings of the board. they forget that even executive sessions must be noticed 48 hours in advance of the meeting, unless it is an emergency and the action or subject of that meeting cannot wait the 48 hours for the notice to occur.

    The open meeting laws go on to describe what must be done after an emergency meeting of the board.

    I’ve heard many arguments that e-mails are not meetings so therefore the open meeting laws do not apply. To that I simply answer that in 1997 the Attorney General of Arizona cited in an official opinion that in the absence of definition of what constitutes a “meeting” in Title 33, you can go to the only other definition of the word “meeting” in statutes and that is in Title 38 for public bodies. The definition in that Title (38-431 (3)) is clear and in detail discuss types of e-mails that constitute a meeting. That particular statute was modified last year to incorporate another Attorney General opinion directly related to the use of e-mails.

    The most powerful aspect of the open meeting laws for HOA and Condominiums is the public policy statement contained in those statutes. In 2017 I initiated a bill that include language into that policy that specifically held the board and the community managers responsible to ensure that if there was any doubt in whether the open meeting laws applied to clear that doubt in favor of open meetings. That was the first time where a so called community manager was held responsible for anything in statutes.

    Clearly they (the community managers) have not gotten that message. It is about time that AACM and CAI start including in their so called training programs the development of community managers ability to read the law, and the governing documents.

    Dennis

  2. Dennis Legere

    Mike ;
    Write me at the help@azhoc.org relative to your record request and I’ll help you out. You will most probably get a response that the association does not keep e-mails as official records of the community, but that is hog wash. If they discussed community business or conducted community actions in written form (which the e-mails are ) they are records of the associations and required by ARS 33-1805 to be made available to any member so requesting. In fact in some cases if the board does not conduct it’s communication on a separate e-mail accounts, the board members have been required to provide their entire e-mail history from their personal e-mail accounts in response to subpoena’s from the courts. This is not a small deal, and boards should be must more cautious in not conducting community business via e-mail.
    This was a great question and I’m glad you posted it so everyone can see.

    Thanks
    Dennis

  3. Mike Collins

    Dennis,
    So… with respect to non-emergency business discussions and decisions.

    Our committees and boards are almost helpless to do anything until there is a meeting. Open meetings requirements is a crushingly slow and inefficient way to conduct trivial non-emergency business. Meanwhile, the CM makes all decisions without us. If we try to alter his decisions via e-mail or have any discussion via email he shuts down the email discussion with the phrase “HALT – open meeting violation”

    If directors and committee members should not use email to discuss non-emergency issues – and if they should also not use unanimous consent via email to make decisions without a meeting, pursuant to ARS 10-3821 or the Bylaws, how are committees and boards supposed to accomplish anything?

    There must be something we’re missing.

  4. Rob Falko

    It’s fairly easy to find information on what boards are not supposed to do – a little bit harder to find good information on the best practices boards and committees might use to conduct effective, efficient working meetings while still respecting open meeting laws.

    Not very surprising that many sites in the web advise readers to rely on the management company and their vendors to conduct most of the business between meetings. And for routine, repetitive, cyclical stuff, that probably makes sense. But not for large projects and complex decisions.

    Interestingly, a few sources of knowledge recommend a new sort or “radical openness”. As costs for video streaming and conferencing have plummeted – and cameras and go-pros everywhere – some sites are recommending televising or video streaming work sessions between meetings – at least for city council. Televised work sessions with video streaming *might* be a tool that allows directors (with or without quorum?) to discuss and study complex problems between regularly scheduled board meetings.

    Found an article from 2006 on the Arizona Daily Sun titled “Council work sessions televised more often” stating that “Flagstaff City Council work sessions are now televised three times each week on Cable Channel 4” https://azdailysun.com/news/local/council-work-sessions-televised-more-often/article_e7ae3981-cd1b-5cea-916e-f80dc35c4a91.html}

    Also some great information on the Michigan Municipal League’s website, http://www.mml.org. This one pager was particularly helpful “Work Sessions – Use by Legislative Bodies”.

    From the MML one-pager:
    “Work sessions are intended to provide opportunities for council/board members to study difficult issues,
    gather and analyze information, and clarify problems. The public must be given an opportunity to address
    the council/board. If council is going to have a meeting, and it is a posted public meeting, then people must
    have an opportunity to speak under the Open Meetings Act. That is perfectly fine, but rules governing public participation ought to be enforced, and those in attendance should be made aware of the
    purpose of the meeting—to study issues, not to take action.

    Citizens often aren’t aware of or understand the differences between work sessions and regular sessions.
    This often gives rise to the perception that the decision process in the regular meeting is rigged
    beforehand. There are no easy answers to this problem. The best that can be done is to communicate, as
    much as possible, the process by which council makes decisions. Make it clear that council holds work
    sessions for difficult issues, that these sessions are open to the public, and that no decision is made except
    in a regular session.”

    The MML one-pager also mentions the importance of educating citizen on how Open Meeting Laws might be used to prevent boards from doing anything productive between regular board meetings – and how the televised or streaming processes might be used to allow board members to meet publicly in order to analyze and clarify problems while still allowing citizens and homeowners to watch the discussions.

    If boards can webcast and support remote homeowner participation – committee meetings should also be allowed to webcast and support remote participation.

    Dennis – any thoughts on how technology including video webcast might be used to support a new “radical openness” for HOAs in Arizona?

    1. Dennis Legere

      Rob;
      Great comments and post. I could not agree with you more. Current Arizona statutes are considerably out of date and are very limiting with the allowed options for a board or members to meet remotely. I’m actually trying to address that with my top priority bill this session. Amoungst other things i’m Looking to broaden the flexibility of boards to use technological means to conduct meeting and to allow both board members and community members to participate remotely. The variety of options are limitless and advances in technology will only make these options better and simpler to use. As you so well stated is the communities faith In the decision making process of their board of directors comes in transparency and openness inconducting its business. We do not seek to overly burden boards with the open meeting laws only to ensure that those boards, community managers or most importantly association lawyers do not circumvent or simply ignore the law because they can because only the homeowners will hold them accountable. Many board members have complained to me that the provisions in the law relative to informal meetings of a quorum is overly restrictive. What I tell them is i’m willingszzzzzz, to try and work on that language but I need to first get acknowledgement that both AACM and CAI understand and respect the open meeting laws and will hold their clients accountable to know and support those laws, before I do anything to change the current language in the law. That will allow social gatherings of board members where incidental discussion of their community may take place, or opportunities where a quorum of the board walks around their community to look for issues that they and fix or address to improve their community. These make sense for communities but unfortunately I cannot trust current community managers or community attorneys to use any common sense with what they advise their communities to do.
      Back to the original question, business applications like go to meeting and basic conference lines or video conferencing like face time or Skype are all means that could allow both board and members to participate remotely. While my current proposal stops short of a totally virtual meeting, I still require that at least some board members participate in a physical meeting so that homeowners not comfortable with technology can still participate in person. Some day that is not out of the question.
      Thank you for your comments and site references.
      Dennis

  5. Scott

    Hi Dennis,
    I have been on my HOA board for over a year and just resigned recently after an election and the same board President and Vice President ended back in place. Yikes!
    The previous board prior to my joining the board conducted the majority of business using Unanimous Consent based on nonprofit corporation law. I brought this to their attention and said we only need to meet more frequently to be in compliance with the law. They to date have refused to do so and the property management company with the CAI certified property manager have not clearly said it is a violation of law. They’re quite the joke!
    I resigned after the new board election did not change anything and I would be fighting another whole year with every decision to have open meetings. The other two board members like to point their finger that I am the reason nothing is being done. I felt I had no choice but to resign.
    I wish the statute had some teeth in it. For instance, an automatic civil penalty against the property management company for being complicit in any violation of the open meeting law unless they can show they explicitly informed the Board that this was against the law at each attempt to violate the open meeting law.
    In my experience, the property management company doesn’t want to come to more meetings either.

    1. dennisl

      Scott;
      You are correct and the management company and other board members are wrong. Action by unanimous consent without a meeting is a direct violation of the open meeting laws for HOA’s ARS 33-1804, if that action was not an emergency that could not wait for the 48 hours required for notification of an open meeting.

      It is long and well established in Arizona case law that general statutes cannot supersede or usurp more specific statutes. That is what is happening here. The HOA industry has claimed that since most if not all HOA’s have been incorporated as non profit corporations that then can use NPC laws to apply to these HOA’s. That can only happen if there are no conflicts with any provision of the more specific statutes of Title 33 chapters 9 and 16. NPC have no open meeting laws. The attorneys that drive this behavior also wrote most of the governing documents for these communities and I again would bet that every set of governing documents specifically include and allowed action without a meeting for the board.
      If you want to stop this behavior, get copies of the minutes of every time your board conducted any business via written consent without a meeting. Then file a petition to the Department of Real Estate against the board for violation of the HOA open meeting laws. It will initially cost you $500 to do this but the association will be forced to pay you back when you win. I can help you prepare for the hearing before the Administrative law judge and provide you at least 3 other cases on the exact same issue that were all won by the homeowner.

      if you decide to pursue this approach contact me at the e-mail address above.

      Thanks
      Dennis

  6. Chris BC

    Hello Dennis,

    I found the DeBoer v. Turtle Rock III HOA decision, but not anything to do with “tribunal” as shown in the OP above, nor language about emails for decision making. Can you point me to a copy of what the OP refers to?

    As you might guess, my HOA board and management company have been conducting business via email lately. I’m asking for all emails and I want to stop the recent opaque actions.

  7. dennisl

    Chris;
    I’m not sure what exactly you are looking for. While title 10 in section 3821 allows corporate boards to take action without a meeting, Title 10 for corporations have no open meeting laws. HOA’s and Condo’s do have open meeting laws that take precedence (specific statute always take precedence over general statutes) over the Title 1`0 provisions. Any communication between a quorum of the board discussing community business even if no action is taken even by technological means (e-mails) constitute a meeting subject to the open meeting laws for HOA’s and Condo’s.

    There are many ways to conduct business under the open meeting laws but it take forethought and planning. If you wait to the last minute or don’t think ahead as a board it will seam hard. If you actually thing about what you have do ahead of time it is quite easy to conduct all the business you need within the normal meeting schedule for the association.

    Dennis

    1. Chris BC

      Dennis,

      I am specifically looking for the document with the language shown in the post above:

      ” The tribunal in DeBoer v. Turtle Rock III HOA, concluded that the Board’s “practice of taking actions in the absence of a meeting by obtaining unanimous written consent of the Board members via email violated the charge provision of A.R.S 33-1804.” ”

      I’m not on the board I speak of. I want to stop the conducting of business via email. I saw where you are trying to get specific language prohibiting that into the statute, but for now the text implies that it is improper but does not explicitly prohibit it, such that management companies can claim that it is allowed. A court ruling establishing the implied prohibition would be helpful until the specific language prohibition can be passed. If you have the tribunal (?) decision quoted above, please share. I cannot find it no matter how I search online.

      1. dennisl

        Chris;
        The case your are looking for is case 17F-H1616006-REL that can be found on the Office of Administrative Hearings web site. Richards case in 2017 was based on my case in 2014 and 2015 directly related to the illegality of actions without a meeting by HOA boards. There are also at least two other cases that again directly referred to my case in 2015 on the same subject. All of this stems from two basic facts, first that the attorney general in a 1997 opinion determined that the definition of a meeting for HOA boards must use the only definition for a meeting in statutes and that is the definition established for public bodies. In that definition it states that a meeting is established if a quorum of the board proposes, discusses or deliberate or votes on any action that should come before the board in person or by technological means. The last part is the key point a meeting takes place even if the board is not physically present in the same room. So a discussion by conference call or e-mail will constitute a meeting. Arizona law demands that any meeting of the board to conduct business or take action must be noticed at least 48 hours in advance and members must be allowed to attend and participate in that meeting. If a quorum of the board discuss any community business via e-mail they are violating the Arizona open meeting laws.
        The second important part of this issue deals with the fact that most CC&R’s and Title 10 for non-profit corporations allow “actions without a meeting by unanimous consent” ARS 10-3821. All association attorneys and most community managers cite this statute as justification for e-mail actions. Which of course is totally wrong. The Supreme Court of Arizona established in Larson v Farley in 1970 that Specific statutes always control over general statutes if conflicts arise. Title 10 applies to all non-profit corporations while Title 33 chapters 9 and 16 apply to all condominiums and all planned communities. Title 10 has no open meeting laws and as such provision relative to meeting must be subject to the specific statutes of Title 33. The open meeting laws for HOA take precedence over the general meeting provisions of ARS-10-3821.

        When I won my case I tried to get AACM to include that case in their training of community managers so that boards would stop using action without a meeting. After months of pushing them on this issue I finally got a letter from AACM’s attorney stating that they would not be including any reference to my case in their training “because they did not have too.” This is when AZHOC was born.

        Hopefully this clarifies the issue?
        Dennis

        1. Chris BC

          Yes it does. Thanks! I’m ready to donate to the cause now. I will look up the case you gave in the administrative hearings.

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