Question about Open Meetings and Minutes
Our board held an open meeting in June. They did votes in it.
Do the minutes from that meeting have to be approved at the next open meeting?
Or can the board skip that review/approval at the next open meeting, saving approval of the prior open meeting minutes for some other meeting in the next months?
Is there any Statute that relates to this?
Thank you
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Michael,
Typically, boards approve the minutes of a previous board meeting at the next board meeting but there is no requirement in law for them to do so, nor should there be one. What is relevant to me is the fact that boards refuse to provide drafts of board meeting minutes to members until they are officially approved by the board. Then and only then are they an official record of the association subject to the records request laws. What I will do is mandate in law that boards provide draft minutes of any meeting 10 business days after any meeting. This provides the members with the draft of the actions taken by the board at their meetings in a timely manner irrespective of when they actually approve those minutes. This new provision is in a new bill proposal that I’ve drafted for legislative consideration next session.
Dennis
Hi Dennis,
Is there anything that a homeowner can do if the meeting minutes that the Board approved, but did not share a draft of with the community prior to approval or during the vote, are not accurate?
Example: our Board had requested the manager get bids for updating our Reserve Study. The manager got bids from 2 companies, said a 3rd company who we had never used, was 9 months out, but did not reach out to obtain a bid from the company that did our current study. The Board requested she get a bid from that company, and then moved on – no vote.
The meeting minutes, which were approved 2 months later due to a “summer break” stated the Board voted to have the company who did our current study update the Reserve Study. No recording of motions or vote totals (because there wasn’t one).
Because the Board approved these minutes, the management company could now give this company the work without the Board having ever reveiwed a bid or have knowledge of the cost, right?
Amy,
There is no current requirement that board must provide homeowners copies of draft meeting minutes. I hope to change that with one of my bills this coming year. Officially board minutes are not records of the corporation until they are approved by the board. The board has a duty to the association to maintain absolutely accurate records for the association. Anything short of that constitutes falsifying corporate records that is actionable by any member of the association. There is no requirement that the board make the minutes or any information that they are considering available to any member present at the meeting. It is very difficult for any homeowner to provide any valid comments on issues being considered by the board if they are not provided copies of those document beforehand. My bill will require that draft minutes be provided to any member upon request 10 days after any meeting. It will also require that certain significant issues to be considered by the board be made available to members 48 hours prior to the meeting.
This is why I put into the law the ability of any homeowner to record any meeting of the board. The direct recording can then be used against the board if they attempt to falsify the record of the meeting and is absolute truth of what exactly transpired at the meeting, and you will not end up with issue like this. If you were to challenge the actions of the board in this case the burden of proof would be on you, and it would be your word against the word of the board members and the community manager.
Right now all that you can do is remind the board that the minutes of a meeting are the official record of the actions of the board and if they do not reflect the actual votes and actions of the board then any board member that votes to approve those minutes could be found liable for falsifying corporate records. This is not a game and any attempt by the board to falsify actual motions or votes of the board has personal consequences.
If the board took this vote outside the open meeting, they violated the open meeting laws. This is why there is an open meeting law in the first place, to ensure transparency in the conduct of association business and to ensure that homeowners have an opportunity to speak to the issue before a vote by the board.
Dennis
Thank you so much for your reply, Dennis! I actually do have a recording of the meeting which is how I knew for certain that meeting minute entry was not correct. This actually is not the first time the events of the meeting were improperly recorded in the approved meeting minutes, and I have recordings of every one of them. I’ve requested that they correct it, so we’ll see what happens.
Thank you Dennis for both your reply, and all of your effort on this matter I believe that all of us want to believe the best in people, but the fact remains some HOA boards just don’t even try to fall statutes. I greatly appreciate you putting in the right for homeowners to record open meetings I noticed that the law does not include that for close meetings however, I don’t see anything there precluding that, and since Arizona is a one party consent state, if I am present, could I also record a closed meeting?
Michael,
If the meeting was a closed meeting, you would not be present and only the board would be there. While Arizona is a single party state that only applies to public spaces. Because the association is technically a corporation a closed meeting t=of the board is not a public space and recording would be prohibited. An open meeting of the board could also be classified as such so that is why the law had to specifically allow it.
Dennis
Dennis,
Our board noticed an Open Board Meeting. At that meeting, the HOA attorney was present. We were told we could not record ANY of the meeting that the atty was present for. He stayed for the entire meeting, even while things expressly disallowed by “closed” meeting standards (like irrigation costs) were discussed. When challenged (at a later date) on the preclusion of recording of the entire meeting, the board and their attorney claim (after-the-fact) that the portions where the atty spoke were “closed”, even though there was no notice of that, no citation of statute to allow for closing the meeting, no formal board vote to change venue from open to closed session, and the minutes (approved at the next meeting) give no indication any portion of the meeting was closed, or that the meeting moved in/out/in/out of closed session as the atty spoke, sat silent during irrigation stuff, then spoke up at a later time.
They have redefined the word “closed” to now mean “only members present” and so, by their new definition, the meeting was “closed” yet open to the entire membership at the same time. So that is a new work-around they have for ARS 33-1804 preclusion of recording during open meetings.
Please share your thoughts.
Thank You,
Michael
Michael,
While the association is free to close any meeting to receive advice from an attorney. The closed meeting would exclude any member from the community. The association board has a right to restrict access to their meetings for any person that is not a member of the community or a designated representative of a member of the community. This does not make those open meetings of the association closed meetings, as defined and used in the open meeting laws. All association meetings can be closed to any nonmembers unless they were invited including meetings of the members. The association should not try and use word games to get around the open meeting laws. There are only five approved subjects that can be considered in closed meetings of the board, everything else must be considered in open session. The public policy statement clearly puts the responsibility on the shoulders of the association board and community managers to construe any aspect of the open meeting law in favor of open meetings. If a board meeting is open to the members, they must allow any member to record that meeting, or the association must record it for everyone themselves. I know what this provision says because I drafted that provision myself. Because an attorney is present at the meeting does not negate the law. If the board wants advice from the attorney, they can go into executive session exclude everyone else and get their advice then re-open the meeting for the members. So, whomever stated that because an attorney was present no-one could record the meeting was absolutely wrong. If what you stated is true than this association is absolutely violating the law and the attorney that condoned and supported or directed this action should be disbarred or at least disciplined via a complaint to the Arizona Bar.
I’m sick and tired of HOA attorneys believing that they have to right to create law where it does not exist. Only the legislature and the Governor create laws for this state and all attorneys are obliged as officers of the court to abide by those laws as written. No attorney is granted the authority to create a law or to interpret a law in a manner that is clearly in violation of that law. The Arizona Bar needs to hear about every time any attorney tries to do this. Every homeowner as members of the association has the right to file a derivative complaint to the AZ bar on behalf of the association based on the bad actions or advice from an HOA attorney.
Dennis