Board of Directors Meeting
At a board meeting a few months ago, the Board of Directors Meeting Agenda included an item with a very vague description. The board president asked the board if they were ready to vote and all agreed. The president made a motion to approve and during the discussion period a few owners in attendance started asking some questions. The board was very reluctant to answer any of the questions and when the owners continued to want to know what was actually being voted on, the board “tabled the item”. This item has never been brought back to a Board of Directors Meeting for a vote however, owners that have asked about it have been told that the board had the authority to make a decision without bringing it to a vote and they went ahead and made a decision to approve the item. The association has never been informed of the actual details of the item nor have they been informed that a decision has been made by the board outside of a Board of Directors Meeting.
Question: If an item on the Board of Directors Meeting Agenda is brought to a vote and then “tabled” during the discussion period of the motion, does the Board of Directors need to bring this item back on a futire board meeting agenda in order to make a decision?
Thank you.
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Denise
Arizona’s open meeting law requires that any time a quorum of the board meets or discusses any community business they must provide 48 hours advance notice to the community and allow any member to attend that meeting and participate in the discussion on any issue brought before the board. Your board was wrong and if they enacted any issue outside of an open meeting, they violated the law. That would also include any community manager that told them they could do this or any attorney that advised them to do this. In this situation clearly the board members had some sort of communication on the issue prior to the meeting and wanted to slide something by the community. That discussion or emails violated the law. Once they tabled the issue, they could only act on that issue at a subsequent open board meeting and could only act by a vote of the board. The board is a body, and they can take any action they want but only as a body and within an open meeting where members can attend and participate.
This board needs to be taught a lesson on the law and unfortunately the only way to do that is to file a petition to the Arizona Dept. of Real Estate on the clear violation of the open meeting law ARS 33-1804.
The open meeting law is not put in place to make it difficult for communities to function it is put in place to ensure that business of the community is done with complete transparency and the scrutiny of the community.
Dennis
Dennis
Does an Association board have the right to vote in a closed session to direct the Association attorney to proceed with an Association lawsuit court filing without informing the membership first or allowing members to comment first before they vote re: one of the five exceptions to the Open meeting? In other words, it was all done in secret and notice to the membership was only given five days post court filing by the same Association attorney who does not represent the members in the lawsuit, only the Association as a corporation. Members have now been told to hire their own attorney.
Ann,
Technically no. While they can consult with their attorney or get legal advice from their attorney in a closed session nothing in law allows them to vote to expend community money to engage in a lawsuit in closed session, so that must be done in an open session and members being allowed to comment on the issue prior to the board vote. Is the board suing the membership as a whole? Why do the members need an attorney?
You can solve this issue by starting a petition to recall the entire board all you will need is a petition signed by 25% of the community to call for a special meeting of the members to recall each and every board member. While you are doing that get a list of members that would be willing to run for the board to fill the vacancies with some desire to actually comply with the law and treat the homeowners with respect.
Dennis
The Association attorney states that he represents the non profit corporation i.e. Homeowners Association and that he has been directed by the HOA Board to proceed to file a lawsuit rather than putting the question to a vote of the membership at large. The members are not part of the Board or the corporation so they need their own attorney to represent their interests if they don’t like this decision. As stated, this was all done in secret and closed session until the attorney sent a letter to the members advising them of the lawsuit. Only upon insisting he answer our questions as to whether we the members were represented by him in this HOA litigation did he finally tell us, No, hire your own attorney. My internet research indicates that this is actually correct. My remaining objection is that the decision to file the lawsuit was voted on by the Board without allowing any member notification or input prior to their vote. They say the pending or contemplated litigation allowed them to take this vote in closed session and they were not required re: the exception for contemplated litigation to allow members to first comment.
A recall will not work since the members are not that motivated to get involved in part because many of them are absentee vacant lot owners. They/We will have to pay the substantial attorney fees/costs to resolve this question in the court rather than a vote.
Ann,
The attorney is correct all HOA attorneys only represent the interest of the corporation as their client. Because the homeowners pay for that service is totally irrelevant. The ability to discuss actual or contemplated litigation is allowed in executive session but the decision to vote on that litigation should have been done in open session. This is a commitment to expend association fund and should have been done in open session. This was clearly an attempt to circumvent the open meeting laws of the state. Unfortunately, if your community is not willing to hold the board accountable to the law then they will do whatever they want and the law is totally meaningless for you. Your board can and will do whatever they want knowing that whatever they do they can get away with it. How can you expect thew state to help you in this situation if the members of the community are not willing to help themselves.
Dennis
Thank you, I really appreciate the information that you provide.