6hr notice for Executive Session???
I just received email notice that our board of Tonto Forest Estates HOA (managed by Ogden) is going into Executive session… for 5pm tonight. That is about 6 hours’ advance notice.
ARS 33-1804D requires 48hrs notice for board meetings.
Does that statute not apply to Executive Sessions?
They also do not cite which of the 5 items under ARS 33-1804A for calling the Executive Session. If you like, I can email you the notice.
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Fish7,
The notification requirement applies to all meeting of the board open or closed. The only exception is for emergency meeting that require action that cannot wait for the 48 hours needed for notification. For all executive sessions whether is for a standalone executive session or one in combination with an open meeting the board by law must identify the specific subject matter classification exception that allows the board to go into executive session.
Based on what you provided me your association violated the law for both points.
Dennis
Thank you, Dennis!
Dennis, appreciate your well-reasoned responses. But Whoops, FISH7 didn’t say that the meeting Notice WAS posted in a conspicuous location at the community mailboxes on the weekend beforehand, and listed the ARS 33-1804 (A) privilege reasons for the closed meeting. I have a picture of the Notice posting at the mailboxes.
K,
Thank you for the additional information. I can only answer based on the information presented. What you claim is exactly what I quoted as required for notice of executive sessions.
The real issue is, did the discussion in this session stay focused on the specific area identified in the exception or were other issue discussed? I revised the statute to ensure that board take the time to actually read the exception before going into executive session so that they understand their limitation for closed door sessions. I cannot legislate integrity and either you have it, or you don’t. The board and the community manager are specifically tasked in the public policy statement to interpret every aspect of or any uncertainty in favor of open meetings. If in doubt the board is required to defer to open meetings in all cases and not to attempt to abuse the use of executive session. I’m not saying that anything wrong occurred in this meeting, i have no facts from which to draw any opinion in either direction. Only those at the meeting can truly determine if what was discussed complied with the law and their responsibility to defer to open meeting if in doubt.
Dennis
Dennis
Dennis, as a resident and member of the community above, was commenting only to the fact that FISH7 provided incomplete representation. As you said, you can only reply to the information you were given. Stay strong.
As a current Board member, I so appreciate the learnings I gain from this site. I agree that sometimes details can be one sided and Dennis can only address accordingly. Still….it is always on task! Thanks Dennis.
I love the idea of reading the item for the focus before the start of the Exec Session- and would suggest the order of Exec Session take place after the main meeting. Just my opinion, but it helps us with just that focus. Everything else is covered in the open format….and just what we stated for the Exec Session is all that is left. By placing that last we stay on task, while doing the Exec Session first can lead to some off focus conversations or wandering. A good community manager can help here, but even the best cannot make up for a Board that is unwilling to listen and learn.
As an example, I have over 6 emails to a community manager calling out the notices of the Exec meetings did not have the statue cited. I received a message back each month from the community manager stating I was correct, and they would notify the President so she could correct that. This went on each month of her tenure with the same reply from the community manager and no correction from the President. I even told the President that should ADRE become involved, this would be in the community records. She simply refused to comply with State statutes. I understand she is back serving on the Board, but luckily not as President. Still, I question the poor advice she gives the new President, in more ways than just these statutes.
So back to the question at hand and the notification. ‘HOW’ matters. Saying you have a picture of the smoke signals that went out the weekend before from your outside fireplace may not pass ADRE scrutiny. A picture of a flier at the mailboxes is about the same, imo.
-How many part time residents were not there to see it?
-How do you know people visit the mailbox on the weekend?
-Did TFE winds blow it down?
History matters Kurt, and the TFE community has a history of Board members post dating documents to support their decisions. Yes, a homeowner had the knowledge to go into a document and see the date the document was created. Makes for some trust issues. So I have to ask, what prevents the photo from being taken after the Fish’s call out? What prevents editing a date onto the photo?
I know, sound silly as we are talking HOA here, and I do not know you, I am just asking questions. Homeowners will look at your actions as these speak louder than words.
What is the reason behind community managers backing up emails in a very specific way? So there is a record in community documents. It would be interesting to see if ADRE will accept a picture of a sign at the mailboxes to communicate to all homeowners that a meeting was going to take place—especially when all homeowners are not full time, some have made it known they do not leave their house for health reasons etc. In today’s time, how we communicate and document that communication matters. Your community manager should help you with acceptable proof and documentation of such. Pretty sure ‘how matters’ to ADRE.
Katkendall11,
One thing I did in 2016 is make it the responsibility of both the board and community manager to comply with the open meeting law. If the board president provides a draft notice for an executive session to the community manager without the referenced section of statute authorizing that closed session it is their job to include it prior to actually posting the notice. Nothing in law requires that everyone be noticed of these meetings only that notice is provided. The statute does not and should not tell the association how they provide that notice. Some use a physical posting at mailboxes of designated community bulletin boards, others provide e-mail blast to everyone, and other use a posting on the community web site. If notice is posted at least 48hours prior to the meeting even if no-one sees the notice the law is satisfied.
To me it also makes no difference if the executive session is before, or after or totally separate from the open meeting of the board. I will once again be proposing legislation addressing clarifying several aspects of the open meeting statutes one of which is the fact that clearly discussion and consideration of certain topics can be held in executive session noting in law actually allows any action to be taken in executive session, and in fact the opposite is true. The open meeting requires that members be provided an opportunity to speak before any vote of the board of directors. This is denied if the board votes to take action in executive session. My bill will make it clear that the board cannot take any action in executive session. Once that bill is made law then it will make a difference when the closed session is held, and it would make more sense to have the closed discussion first then go into open session and if you need to take any actions based on the closed session issues you do so in the open session.
As for the issue of whether the ALJ would accept a picture of a notice of a meeting is totally irrelevant, because the law specifically identifies that if the board members states in an affidavit that a notice was posted with or without a picture than the notice was provided and the law was satisfied.
Dennis
Dennis
Reading this over, you said something that has me wondering…. two things.
1.) you wrote “noting in law actually allows any action to be taken in executive session”… I presume you meant to write the word “nothing” there, and not “noting”, correct?
2.) you wrote “The open meeting requires that members be provided an opportunity to speak before any vote of the board of directors. This is denied if the board votes to take action in executive session. My bill will make it clear that the board cannot take any action in executive session. ”
Since the new language being proposed is only to “make it clear”, then are we correct to understand that, under current law, a board may not formally “take any action” during an executive session?
And, if so, wouldn’t that also mean that the board could never do “vote by email” privately, outside of an open board meeting?
If so, wow, those are significant points to get clear! And those are subtleties that I think many do not appreciate.
Fish7,
This is exactly true. Emergency actions are the only action that would allow the board to take an action outside of an open meeting. Every HOA attorney will tell boards that they can take actions without a meeting based on the non-profit corporation act and provisions in the governing document. But they conveniently ignore the fact that that the specific provisions of ARS33-1804 take precedent over any general provision in the non-profit corporation act or any other provision in the governing documents. ARS 33-1804 specifically requires that all meetings of the board be open and that members be allowed to speak prior to the board vote on any agenda items. While the law recognizes the ability of the board to consider specific issues in closed session it does not mention in any way that the board has the authority to act on any item considered in closed session. Additionally, the public policy clearly both reiterates this general requirement for the members to be allowed to speak prior to a vote by the board it again also stipulates that if there is any doubt with any provision in the statute that the board must act in favor of open meetings. Public policy statement exists only in four unique locations in all of statutes. I count this statement in the planned community act and the condominium act as one of those occurrences. This clearly shows the significance of this policy statement and why it has board-based override over the interpretive capability of attorneys. No matter what an attorney interprets the law to mean or say the board must always act as if the issue can only be dealt with in open session. The legislature cannot dictate what an attorney does or says, because that would violate the separation of powers doctrine, but they can control how a board or community manager acts. The entire purpose for the open meeting requirement for these communities is for transparency in the actions of the board. Without transparency and openness doubt is cast on the legitimacy of the actions of the board, and the communities are placed in turmoil. Abuses of power cannot exist under the light of day but flourish in the darkness.
Dennis
Dennis
Had a bit of a debate amongst a group of us regarding this: “the SPECIFIC provisions of ARS 33-1804 take precedent over any GENERAL provision in the non-profit corporation act” (emphasis supplied)
Is it correct to understand that, for example, ARS 10-3821 is over-ridden by ARS 33-1804, meaning that an HOA board CAN NOT do a “unanimous consent” action without meeting (other than an Emergency Meeting)?
You are absolutely correct. Written consent without a meeting for planned communities and condominiums can only be utilized for emergency meetings of the board. All board meetings under the open meeting laws whether open or closed must be notified 48 hours in advance and must provide any homeowner present an opportunity to speak on any issue to be voted on by the board. This is why I’ve always held that under the law the board can take action only in an open meeting. Closed sessions are allowed for “consideration” and discussion of certain issues but the board cannot legitimately act on anything in a closed session.
The important thing to remembers is that corporation are never subject to any open meeting laws, but these communities and all public bodies are. This in fact is a recognition that these communities are more similar to governments then to corporations.
Dennis
Dennis, thanks.
I just spent about 6 hours going through OAH/ADRE cases. I found yours from 2015. I found this CONCLUSION OF LAW particularly relevant: “An agency may not disregard clear statutory directives or legislative intent. When statutes conflict, a special statute will prevail over a general statute. Under well-established canons of statutory construction [HOA’s cannot] use title 10 to impliedly repeal duly enacted , unambiguous statutes, such as ARS 33-1804A” and “taking action in the absence of a meeting by obtaining unanimous written consent of the board’s members via email violated the charged provisions of ARS33-1804A”.
And then I found Burnes vs Saguaro Crest from July 16, 2021, which seems to contradict the Tribunal conclusion you had. This new CONCLUSION OF LAW says ARS 10-3821 is consistent with ARS 33-1804 because “no meeting actually occurred and therefore Section 33-1804 does not apply” and “Respondent did not conduct a meeting… but rather took action without a meeting as allowed by Section 10-3821”
Unless I’m missing something, it seems to me from those to “Conclusions of Law” that one could cite either case law to argue this (“right to unanimous consent”) either way? If so, that’s frustrating.
Fish7,
The fundamental premise of law has not changed. The burden of proof lies with the plaintiff in any hearing before an ALJ. If the recent case did not refer to my prior case in their arguments and did not use the 1997 Attorney General position that defined what a meeting consist of, then they failed to convince the judge of the truth. There is only one definition for a meeting in all of statute and that definition is contained in the statutes for public meetings. If the plaintiff failed to provide a definition of meeting, they then allowed the attorney to convince the judge that a meeting never occurred, which is absolutely false. Go to my web site and look at the section for state statutes and you will see the definition of a meeting and the 1997 AG opinion. If the plaintiff in this hearing had clarified this truth with the judge the ruling would have been consistent with my case.
This is why I ask everyone wishing to file a petition to contact me first to make sure that they understand what they can petition and how best to frame their arguments then they are risking their $500 on their ability to convince the judge to ignore the crap that the association attorney will throw at them hoping something can stick. Any gathering of a quorum of the board to take action constitutes a meeting even if that gathering is conducted by e-mail exchanges.
Dennis
Dennis…. all i can say is this….
WOW!!!!
and
THANK YOU!!!
PS
Love your closing quote: “Abuses of power cannot exist under the light of day but flourish in the darkness”
That makes perfect sense — incomplete data/arguments loses cases. I’ll check those.
I just found Morin vs Solera Chandler (2020, reheard in 2021) and the homeowner PREVAILED. With the CONCLUSION OF LAW being, “While ARS 10-3821 may allow the board … to take actions without a meeting by unanimous consent, ARS 33-1804 requires that all meetings of the board… outside of Exec Session, must be open to all members.” and the board “improperly conducted association business in closed sessions VIA EMAIL rather than in meetings open to the members.”
Hope I’m not bothering you with all this…. to me, this is fascinating!
There were at least 5 cases hear by the ALJ that directly referred to my case and all won. The case you just referred to did not reference my case but argued correctly. I know what I’m talking about and have absolutely no reason to mislead anyone. I do however prefer to have to give the same answer only once and not 5 times.
Dennis
Hi Dennis.
First timer here. As to the HOA dispute process, an action taken to the ADRE has the board scheduling an executive meeting presumably to decide what to do. If they should happen to make a decision to hire an attorney or take any other action, would that need to be done in an open homeowner meeting as opposed to being made in a closed door session?
Just clarification of what had been written above.
Thanks.
Galinda,
As you describe the issue it would fall under the discussion of pending or contemplated litigation authorized for executive session. I will once again note that while this discussion is allowed in closed session the board is not authorized to take any action in those session and the vote to hire an attorney would have to come in an open session of the board. The board would not have to reveal any of the discussions or advice received in executive session on that matter, but the vote would have to be proceeded by an opportunity for any homeowner present to make comments on the issue.
Dennis