Changing the Posted Agenda at the beginning of HOA Meeting
According to the Az Planned Community Act, HOA’s publish the agenda 48 hrs prior to the HOA meeting ( ARS 33-1804 d). Has anyone experienced their board member changing or adding on the fly new agenda items? A proposed legislative change in 2024 was HB2270 which suggested this concept, however that bill never made it out of committee. The Board members all swear that this advice was provided by the association attorney. They went as far as adding an agenda item to do Add, Move and Changes to the agenda.
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Gerald,
The open meeting laws for these common interest communities are significantly different from the open meeting laws for public bodies like municipalities, county governments, or state agencies. Public bodies lock the agenda and the body cannot discuss anything that was not identified on the published agenda. I’m all my contacts and communications with association boards, I strongly believe that these communities do not need to be subject to such rigorous legislation. The issue is good faith. If the board posts the agenda 48 hours prior to a meeting, there is a real possibility that something new will come up prior to the meeting or during the meeting itself, and everyone will be better served if the board addresses that issue then rather than put it off to the next meeting. I’ve proposed legislation that will codify this flexibility into law. We can never legislate integrity, and I’m sure that some boards will abuse this flexibility to pull surprise and controversial issues into a meeting to minimize the opposition to that measure. Because of that, I’ve chosen to let the statute ride with neither a mandate for agenda rigidity nor agenda flexibility. The silence leaves boards to decide for themselves.
While i seldom agree with association attorneys in this case they are in fact free to modify their agenda immediately prior to and during their meeting. I will monitor this closely, and if I find evidence of the board intentionally falsifying agendas and seeding controversial issues into meetings to suppress member opposition at meetings, I’ll be the first in line to propose legislation to end those practices with laws. I want to make it very clear that the public policy statement makes it the board’s responsibility to construe their interpretation of the open meeting statute in favor of open meetings. Failure of the board to do that with this abuse of agenda would constitute a breach of duty by the board, and each board member could be personally held liable for that breach of duty. Indemnification provisions do not apply to breach of duty.
Dennis
Hi Dennis, Could you clarify for me how I find the public policy statement that encourages the board to interpret the open meeting statute in favor of open meetings? I trust it is posted on this wonderful site somewhere, and apologize for requesting more of your time.
It is the last section of the open meeting statutes for each respective common interest community. For example for planned communities the open meeting law is ARS 33-1804 the last sections established the public policy for open meetings. This type of direct policy only exist 5 times in all the statutes and is very significant.
Dennis
Dennis –
Thank you for your answer and perspective. I would rather see legislative rules codified to define the process rather that leaving up to subjective interpretation since a lot nefarious things can occur before the rules are changed to tighten things up. This process that I alluded to occurred last night at our HOA meeting. Yes, the pool pump malfunctioned after the agenda was posted, it was added to the agenda. But, I was singled out because I shook my head in disgust, when ask, I gave my answer, that an emergency meeting could have been called to take care of it – to me procedural within the frame work of the current laws. But, I did not object verbally or raise my hand to intervene prior, they asked me. They continued and added it and took action. Just have a hard time with the minutes of the meeting not matching the published agenda (no addendum to the agenda for the addition only verbal) , since they are official “records”. I don’t want our HOA to become the next Power Ranch debacle – the first words out of the community manager was “if you don’t like it, challenge it in court”. My HOA uses the same management company and has the same association law firm as Power Ranch. In my mind why would I sue, it only make the two representative attorneys rich, cost the HOA more (and me in assessment fees plus painted as the bad guy) in legal fees or depending on the judgment court costs and the other attorney fees just to prove a clarification of someone’s interpretation of ARS 33-1804d.
Well stated. How I like legislation to read is now always what we can get. This combination of law firm and management company work almost exclusively together and are trouble for any community that they represent. I cannot not tell you how many times I heard this challenge from this pair. They simply dare you to give them the opportinity for them to make more money win or lose. It is totally irrelevant to them whether the anssociation wins or loses as long as they make more money. They should all be disbarred if there was any real credibility to the Arizona bar. Power ranch is the classic example of the incompetence of this pair.
Dennis