Open Meeting
Hello. I’ve been researching for weeks but can’t seem to get a straight answer about open meeting laws. Our HOA has never had an open meeting to discuss finances, budgets, architectural guidelines etc. They change policies behind closed doors and simply send out an email with new policies. In some cases 2 or 3 board members have a phone call to discuss where to invest our cash. When I asked them about where all these decisions are being made, they (and our management company) claim the board has absolute authority to make changes. Fine, but they shouldn’t do it behind close doors or over phone calls with each other without input from members of the community. I can’t tell if these finance or architectural “discussions” are considered regularly scheduled meeting as we have no idea when they’re being discussed or who’s attending. I’m happy to file with the AZRE and pay the $500, but there doesn’t seem to be any clarity on if what they’re doing violates planned community open meeting laws and what authority AZRE would have to make the board actually have open meetings. Can a board just have discussions and make decisions on their own without open meetings?
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Michael,
The open meeting laws are in place for a reason and that is to ensure that the business of these communities is conducted with full transparency. The law requires that all actions of the board be taken in open meeting except for emergencies that cannot wait the 48 hours for notice. And that members be afforded the opportunity to speak on any issue before the board votes on that issue. While discussions of certain confidential nature identified in the 5 exceptions to open meetings can be had in closed session everything else violates the open meeting law. Phone or e-mail conversations or actions between a quorum of the board violate the law. The use of the non-profit corporation act provision for action by written consent except for emergency meetings violates the law.
The ADRE dispute resolution process can be used by any homeowner to challenge any action by the board that violates the planned community statutes or the association governing documents. You must remember that you bear the burden of proof to demonstrate that the association violated the law, so the better prepared you are with evidence and witness testimony the more successful you will be in this venue. The associations do not have to prove that they did not violate the law, and they will use whatever they can to discredit whatever proof that you claim. So going in with circumstantial evidence or hearsay or assumptions will ensure that you do not win your case. With the ALJ it is not about what is right or what is wrong, it is only about what violates the law or the governing documents.
Having said all of that, from what you have told me it appears that you have a good case against your association, but the devil is in the details and no real specifics were provided here. Write me at the address above and I’ll work with you to prepare for your petition.
Dennis
Dennis
Speaking of open meeting laws. Of the 5 exceptions to open meetings, do any of them allow a board to discuss in executive matters that are on the general agenda BEFORE they discuss it in the general? In other words, can the board discuss their thoughts and ideas and with the admonition then of a property manager present and that has brought up there being “extra time” the board should use it to discuss BUT NOT AGREE ON what would otherwise be entirely discussed in the general meeting?
Absolutely not. The law is clear the board is allowed to only consider the specific issues identified in the five exceptions. The board cannot discuss, consider, or even think of anything that is not specifically identified in the exceptions in executive session. I will also not that the word “consideration” used in statute does not include any action or vote of any kind in closed session.
Dennis