Can Board members be gagged under a closed meeting to not reveal comments or issues that reveal ethical concerns with residents?
I am a board member on my HOA who’s board has a split of 2 reasonable people, a tyrant and 2 lackeys. We hold a closed meeting after each general open board meeting to address the updates on account status dealing with legal proceedings, violations & appeals. The agenda/minutes are never shared/posted. A particular tyrannical board member has made comments prohibiting me from going door to door speaking to residents on how they feel about the current happenings and if there are any problems they are encountering, as I had a few proposals that I wanted to submit to the board in an open meeting if the general consensus was supportive. I also made a point not to discuss any specific account details or make any promises of change, just that I was not speaking to them in relation to board business but as a resident wanting to improve the community. After refusing to back down from her demands she made an idle threat to sue me. The general consensus was general irritation with this board member with a few outliers. Violations submitted to the management company on this board member do not get processed. And in our last closed meeting when I brought it up, was told that an email requesting accommodation was made by the PM, but could not be shared due to hippa concern and the BM went on to make a comment that she was essentially exempt from most violations due to a disability(one that would require minimal if any accommodations) I have not been silent on my concerns with this BM’s integrity and harassing behavior targeting individuals that speak against her.
Is bringing the behaviors and comments to light doable as long as I don’t reveal account or private details? I record all meetings. If I remove the comment revealing her medical comment, can I share the recording of the “I can’t be fined” & the fact that a submitted violation wasn’t processed? How much of this is against the letter of the Open Meeting law?
I plan to run again next year and want to campaign aggressively to get the residents involved, but I know they will attempt to roadblock me every step and I don’t want to bring on any unnecessary risk by going against the law.
I believe they will make a motion to have me removed at the next meeting based on “anonymous” complaints, and our bylaws have 2 conflicting articles, one that says removing a member of the board requires a vote of more than 50% Members holding eligible votes, while another says they can be removed by simple majority vote of the board.
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Zack,
I would be very careful about disclosing any information legally disclosed in executive sessions. I will say that any violation discussion is not allowed in executive session other than if the homeowner specifically request to have their opertunity to be heard in contesting the violation.. the board does not decide the homeowner does and is free to request that his appeal be heard and dispositioned in open session. Even if you record an executive session I would recommend that you not disclose that recording to anyone other than a court proceeding as evidence of violations of law. it simply is very shaky ground and could get you in legal trouble.
As for board removal no matter what your community documents say a duly elected or appointed board member can be removed by only two methods. The board member resigns or is considered resigned based on rules where the board member fails to attend three successive board meetings. Or by petition generated by the members for a special meeting of the members to recall the board member. The board has no authority to remove any board member.
You are always free to initiate a recall petition to remove the tyrant if you believe that you have sufficient support to accomplish such a task.
Dennis
If our PM, and our president all push saying that these discussions are to be held in closed sessions, and hide behind 33-1804 A-3&5, since all the arguements and usually arise when a resident is appealing a violation(usually justly so) is there any straight forward way to make these comments made shareable since they dont directly fall under any of the open meeting exceptions themselves, but were made in the closed meeting, and my understadning is the the general topic does fall into the exceptions.
I’d be willing to seek an attorney to help fight this, but it’s a daunting cost seeing as the only payout is less inconviences for myself and others.
Zach,
The homeowner has the right to decide where their appeal of any cited violation or fine can be heard. The board cannot dictate that they be heard in closed session only. Any effort by the association to deny the right of the homeowner to chose violates the open meeting law. Alleged violation of community documents does not satisfy any or the 5 allowed exceptions to open meeting. Violations are not and have never been “personal information” and cannot be interpreted to be because any violation to the governing documents must be seen from outside the home by any casual observer with an understanding of the governing documents. This makes it public information and not private personal information.
If your association board directly violates Arizona law relative to what is discussed in executive session than you are free to expose that violation of law. You should not the very last subsection of the open meeting law that provides the clear public policy that requires every board member and community manager to only interpret any provision of the statute in favor of open meetings. Any board that “interprets the word “personal” in favor of closed session directly violates the public policy of the law.
This is not a game where board or attorneys get to violate the law whenever they want because it is convenient to them. The only way to stop this is to expose it and hold them accountable. Your board should try actually reading the statute instead of listening to their attorney or community manager.
Dennis