ARS 33-1804 A vs F
Dennis, I’ve been reading over ARS 33-1804 A and F, going back-and-forth. When I look at F, it seems that, aside from the provision about “notices and agendas”, that, pretty much everything in F is captured already in A. For example, a “vote” (in F) is the same as “formal action” (in A), no? I see that F uses “ensure” where A uses “permit” when it talks about rights to speak before a vote/action is taken. F seems to give more of an “overriding” type of guidance/clarification as to the spirit and intent of interpreting other provisions within 33-1804, than anything else. A seems to be doing all the “heavy lifting”.
I’m scrutinizing and agonizing over this because I am working up a potential ADRE complaint and am trying to understand when something is a violation of A vs F. Seems to me that all of my violations of F are also violations of A. That is, for the purpose of wanting to win my ADRE/ALJ/OAH case, I’m starting to think it’d be best to just cite the violations and label them all as examples of violations of A (not F)…. thereby saving me one $500 filing fee.
The differences I cite are subtle, so I fear I am missing something bigger. What am I missing?
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Fish7,
The public policy statement in F is a very rare beast in statute (only 5 exist) but is meant to be overriding guidance for the rest of the section. It is not separate and distinct from the rest of the section but rather integral to all of it. If you look to cite a violation, use the specific provision of the statute, but you can also refer to the public policy statement during your hearing arguments and testimony. The public policy statement is very powerful in guiding the interpretation of the specific statutes and tells anyone interpreting the law to err in favor of open meeting. I specifically added the board members and community managers to this statement in 2016 because I heard over and over again from boards and community managers that they don’t interpret the law (only lawyers and judges interpret the law) so that policy does not apply to them. Well, I made it apply to them directly.
Dennis
Ahhhh, now I get it.
Thank you for giving us the unambiguous tools (i.e., provision F of ARS 33-1804) to ensure our HOAs operate and understand the law correctly. Our communities and homeowners all benefit from wise wording.
Will-do!
Dennis, I recently filed a petition with the ADRE and had a hearing through the OAH wherein I asserted that our Architectural Review Committee was in violation of 33-1804 (I didn’t specify a paragraph). Until March of this year the ARC had been having regularly scheduled meetings on the first Tuesday of every month, but had not provided proper notice to members because a location and time was not disclosed – the community simply knew the ARC met the first Tuesday of every month. When we switched management companies in February, they were made aware of the law and began hosting meetings via Zoom. These meetings didn’t go well because the ARC members were not people willing to listen to homeowners and answer their questions or explain their votes. The management company then encouraged the ARC to move to processing submittals through an online portal and specifically said “as a way to avoid the open meeting requirement.” In this portal, they can still discuss anything they want via comment feature, but homeowners have no access to view it.
All of this was proven via evidence at the hearing and acknowledged by the ALJ in her written decision. And yet, she dismissed my petition because since they were not longer meeting on a regularly scheduled basis, there was not a current violation.
You can listen to the hearing. Its public record on OAH. Case number 23F-H008.
I wish paragraph F covered the entirety of the statute, but it does not appear to fully cover paragraph A.
Amy,
I cannot agree with you more. The HOA trade groups and lawyers got this ridiculous provision put in statute specifically for this reason in 2010. “Regularly schedule” is so vague that the attorneys can make hundreds of excuses to undermine this statute. I’ve seen communities define in the charter of every committee that they are not “regularly scheduled” but then schedule those committee on a regular basis. Your ARC is clearly in violation of the law and satisfied the “regularly scheduled” provision and were subject to the open meeting law. I wish that I knew of your petition before it was heard. You see the word “meeting” is defined in statute in only one place. The public body statutes. If you look at my web site under resources, state statutes I specifically include this definition of a meeting. The electronic tool used by your ARC that allows all the committee members to discuss and approve issue fits exactly in the definition of a meeting. So, if you were able to point out this definition in your hearing, you would have been able to counter the baseless arguments of the attorneys and maybe received a different ruling. While what the ARC was doing was clearly a meeting it may not be considered regularly scheduled.
I’ve been trying to get “regularly scheduled ” taken out of statute for years and will continue to do so until it is finally corrected. I once again have a proposed piece of legislation that will remove this provision and describe specific types of committees that will be subject to the open meeting laws no matter how they are scheduled.
As for section F. this is a public policy statement that clearly tells associations and community managers to interpret all aspects of this statute in favor of open meetings. It was put there to try and counter this misinterpretation of the provisions of section A. While it does not specifically address committees it does refer to the entire section. You ARC conducts business on a regular basis and how they met before the electronic transition and after, both satisfy the definition of a meeting and made that committee subject to the open meeting law. What the ARC considers, is the most important aspect of community governance affecting private property,and must absolutely be subject to the open meeting law in all cases.
Who was the community management company before and after the change?
Dennis
Amy, I’m curious to read your case. But when I do a search on the OAH portal, I can’t seem to pull it up. Maybe it’s not posted yet or maybe their search tool is having difficulties? Your case Matter ID should be something a bit more extensive like “22F-H2221017-REL”.
Here’s the OAH search tool: https://portal.azoah.com/search1400/
Any key word to search by would be helpful. I tried searching “1804” and “Amy”, but got nothing in 2022 that looks like your case.
Thanks
We went from PDS to Oasis Community Management. Oasis is likely on their way out, though.
Amy, I found out how to see your case. I had to go to the “search my case” part of the OAH website. With that I can see the recent 2022 cases, many of which are still in process. It appears the OAH will not post the ALJ ruling to the main site search area for some time yet.
I listened to the recording. It sounded like a good case and you handled it well. That silly ” regularly scheduled ” thing is a bummer. Hopefully one day the statute will not have that. It’s a shame that the spirit of a law can be gutted so easily by two little words. I can understand the frustration you must be feeling.