Open Appeal DECIDED in Closed
Dennis,
Our HOA has an “appeal process” regarding violations. Arizona law allows members wishing to appeal to request and be heard in an open session rather than a closed session. For the sake of this question, let’s assume that a member has requested and been granted an open session for their appeal.
Our HOA’s “appeal process” specifies that, “Upon completion of the question-and-answer period, the board President will state that the appeal has been heard and the board will make their DECISION in CLOSED session” (emphasis supplied).
How does this align with ARS 33-1804, which mandates that board decisions must be made in an open session? Considering that the appeal was heard openly and the subject matter is no longer privileged, it seems inconsistent with the law for the board to retreat into a closed session for their decision.
I would appreciate your thoughts on whether this process complies with the statute or if it raises potential issues under ARS 33-1804.
Thank you
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Ray,
The process you describe totally violated the law. First, no actions can be taken during the executive session. Executive sessions are only for “consideration of issues.” The law states that a member can attend any board meeting and speak before any board action. If the board takes action in a meeting where members are not allowed to attend, they violate the law. I understand that lawyers have advised the board that “consideration” includes action, but that is false; the definition of “consideration” has no mention of action. Besides, the public policy clause at the end of the section establishes that the board must “interpret” any provision of this section in favor of open meetings. If they are to interpret the word “consideration,” they must interpret it in favor of an open meeting and exclude any actions.
The exception from open meetings relative to appeals of violations is conditional on the homeowner’s decision, not the board’s. If the homeowner asks for the hearing to be held in an open session, everything about that process must be held in an open session. The board is not even allowed to discuss the issue in a closed session once the hearing is held in an open session.
This is not hard, folks. The law is simple and straightforward for a reason: you can spend less time actually complying with the law or more time trying to circumvent and ignore it. The choice is yours. However, there are consequences for failure to comply with the law.
Dennis
Dennis, Thank you for all that. Maybe a clarification of two terms in our law would help? Something like this, perhaps?
ARS 33-1804(A)5. Modification Suggestion: Discussion of a member’s appeal of any violation cited or penalty imposed by the association may occur in a closed session as follows:
(a) The member’s PRESENTATION of their appeal shall be conducted in an open session by default, unless the affected member requests in writing at least three business days prior to the meeting that the presentation be conducted in a closed session.
(b) The board’s DELIBERATION AND DECISION-MAKING regarding the appeal shall be conducted in a closed session only if the member’s presentation was also conducted in a closed session.
I will clarify this statute by added the words “without actions” after “consideration” and then adding a provision for the board to take action for any issue discussed in closed session in open meeting while still protection and confidential or protected aspects of that issue.
Dennis
Correction: I supposed “b” should only be “Deliberation”…. and then “c” should be that the final DECISION must be made in Open session.