What can or can’t my HOA do in a closed session?
Dennis,
I have watched government meetings. Typically they will discuss items in closed session but then they come out afterward and take a public vote on the issue and allow for public comment on that item. It is only the discussion that is held in a closed session. My HOA holds meetings that are entirely closed. They are posted but since they are closed nobody attends there is no public comment period. They are also voting in these executive sessions and taking action on items this occurs quite frequently. Is this legal? I have friends who are attorneys but they don’t specialize in HOA law. I’ve gotten differing opinions on this. I know they are governed by 33-1804 but it doesn’t give a clear cut answer on this.
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Jonathan,
The open meeting law for these communities is the most violated stature governing these communities. Especially the issue relative to closed sessions. The current language in the law (33-1804) clearly establishes the exact same expectation for these communities as you witnessed in government meetings. There are three specific reasons why I make this statement.
The statute uses the word “consideration ” when it discusses the type of issues that can be addressed in closed session. The definition of the word “consideration” does not include the taking of any action in those meetings. They can talk about the issue but cannot act on the issue.
The general preceding language clearly established that homeowners must be provided the opportunity to speak before the board votes on any motion. Any vote on any issue considered in executive session denies the homeowners the opportunity to speak prior to the vote of the board in direct violation of the law.
Finally, the public policy statement at the end of the statute section clearly established that the board and community managers must interpret any portion of the statute in favor of open meetings. Therefore, even if there is doubt as to what is meant by the term “consideration” the board is compelled to interpret that term in favor of open meetings.
So, the current law allows the five exceptions for issued that can be discussed in closed session. Any action to be taken by the board on any of those issues must be moved and acted on in an open meeting of the board and the members allowed an opportunity to speak to the issue prior to the board voting on that action.
HOA attorneys intentionally advise board that they can ignore the clear language of the law in favor of their interpretation of the law. knowing that if the board is challenged the attorneys will make more money defending the actions of the board. Community managers advise board to violate the law simply because they don’t even bother to read the law in the first place, and they cannot be held liable for their incompetence.
I have proposed legislation that will once and for all, clarify the true intent of the law and end all this abuse of the law.
Dennis
So do you have any type of template or anything I can use to file with the ADRE in order to force compliance? What ammunition will I need to bring with me to this hearing in order to succeed?
Can you send me your case number so I can find and quote it?
Dennis,
Your response to Jonathan’s question and concern is right on point. I would just like to add that the text in 33-1804 reads “limited to consideration” So to me that translates to: discuss the topic for which the closed meeting was called for until your blue in the face, however no board action is allowed within the closed session meeting.
As most of us are aware, a lot of governing boards hide behind paragraph 3 & 5 under subsection A (33-1804). The claim is that fines/penalties are deemed private under financial information. We know this is not the legal intent however this is the area in which this topic becomes ambiguous. Just as Jonathan states in his comment that his attorney friends have differing opinions on this matter as will the AZ office of administrative hearings when conflicting interpretations of the statue noted above are presented before them.
As just one individual who have gone before ADRE and won my petition I would say and I believe Dennis would agree this is an area than will not end in success based on the reasons previously stated. As stated by Dennis the true intention of the law in this area needs clarification so that HOA boards cannot hide within the shadows on this important matter.
My suggestion would be to track the actions of the board by keeping close records or better yet recordings of board meetings and compare them to decisions and rules that are made within your community. If those rules or discussions are not reflected in your regular board meeting minutes then you have solid knowledge and evidence of board actions not documented during an open meeting. All actions of the board require a quorum and a record of those actions are required.
In many government arenas there are also many “watch dog committees” with a sole purpose of monitoring the actions and affairs of those in charge. Maybe a good idea would be to form watch dog committees within HOA’s. Nothing is more effective then knowing your being watched and monitored.
Can you send me your case number so I can find and quote it?
I sent you the decision files for the case via e-mail.
Dennis
Robert,
I agree with your assessment of “consideration” and the executive session abuse. I’ve proposed legislation that will clarify the true intent of the statute for executive sessions and place some accountability on the board for violating the open meeting law, including the recording of any meeting. I will once again work on getting this proposal introduced into the next session of the legislature. I can always use the help of homeowners calling their elected legislators and asking them as their constituents to sponsor legislation that I prepare. All legislators are more responsive to constituent request for help then from lobbyist like me. All members provide the watchdog function by participation and engagement. I cannot mandate that function is statute.
Dennis
Dennis,
My last comment regarding watch dog committeess was really just meant to be rhetorical in nature. However as you know very few people get involved on any level to help remedy issues continually abused by HOA boards and community management companies. Lots of folks get very upset and angry but all to often the battle ends there.
We need to do all that we can individually and together to make HOA communities a great place for people to live minus all the headaches and situations represented by the stories and comments within this forum.
Thanks!
Totally agree and this is what we fight for. Better Communities where people can live together in harmony.
Dennis