Possible illegal handling of violation reports
This is a huge mess, please excuse the length.
Background: Our POA is corrupt and so is the management company. There are many violations of Law and Governing Documents happening. Below is the current problem.
We finally got one new person on the board that is standing up for abused owners and attempting to get the board to follow the law and our governing documents. To shut her up, the board passed a Board Code Of Conduct (BCOC) in an attempt to remove her. Our Governing documents state that only the Membership can remove a board member, but they put it in the BCOC that the Board can remove a board member that violates the BCOC.
Since the passing of the BCOC the POA President and another POA Board Member have been violating the BCOC, verbally abusing the new board member during board meetings, forcing her to file a Violation Report on 2 Board Members. POA Owner/Members have also filed Violation Reports on the POA President and another Board Member with video evidence of violations at board meetings and written evidence of violations published by the 2 board members in a recent Newsletter.
The Board and the Management Company handled the New Board Members 2 Reports as one case and told the New Board Member that she, the victim, could not vote and that the 2 accused Board Members could not vote only leaving 2, no quorum, but it was reported that they may have allowed the Management Company President to Vote and the accusations were deemed invalid. They did not have a Board Meeting. They did this corrupt act by email and/or phone calls.
This is not the first time Violation Reports were handled this way, as this practice has been going on for quite a while. The POA President in cahoots with the Management Company President have been handling violations without board meetings. Sometimes they file CC&R Violations against owners not in the Club and yet they dismissed Governing Document Violations against 3 Board Members earlier this year. And we did not even know that they didn’t have a Board Meeting on it. Lack of transparency is not a sufficient description for this corruption.
We also have POA Owner/Members who are violating a Membership Code Of Conduct also passed recently by the board, who now have violation reports turned in on them by other owners/members, with evidence, and no action has been taken that we know of.
Questions:
Does a HOA/POA Board have to act on all Violation Reports against Board Members and Owner/Members by having a Board Meeting?
Does the POA Board have to Vote or can they just dismiss it?
Do they have to investigate and question the victims?
Can a POA Board disallow Board Members from Voting?
Can they deal with 2 offenses at the same time and disallow 3 board members?
Please clarify what involvement a management company can and cannot have.
It is difficult to find the answer to these questions in the Arizona Law only.
I know our only option is to Sue them, but answers to these questions will really help.
Thank you in advance,
Cindy Smith
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Cindy,
Unfortunately, I see situations just like your community everywhere across the state. I can safely say that the open meetings laws for these communities are violated daily somewhere in this state.
All actions of the board must be taken in open meetings of the board, and actions without a meeting can only be taken in emergency situations where the action must be taken before the 48 hours required for notice allow.
The association board does not have to approve any violation notices before they are sent out, but those notices must contain specific information required by law, including the precise language of the governing documents that is alleged to have been violated. While direct violation of the CC&Rs is one thing, the most likely issue is alleged violations of rules or design guidelines. In truth, the association has very little authority to establish rules outside of the specific restrictions of the CC&Rs under both National common Law principles and actual Arizona and National case law decisions that have been applied over the last 75 years of the history of these communities. As such, most association rules and design guidelines could be challenged as invalid and unenforceable by any court of competent jurisdiction. Direct case law for Arizona has clearly established that rulemaking and enforcement must be done reasonably and fairly for all homeowners. Selective enforcement of rules for some and not others is what is called selective and arbitrary, and is invalid and unenforceable as both unreasonable and unfair.
Arizona law allows any homeowner to appeal any notice of violation to the board of directors and request a hearing before the board at either an open or closed session of the board at the homeowner’s option. Fines cannot be applied for any violation until the opportunity to be heard is satisfied.
The board must vote on any appeal regarding whether to cancel or retain the violation. Those votes must all be completed in open session. This discretionary authority must be reasonable and considered, and cannot be selective based on board membership or friendship, as all homeowners must be treated fairly and consistently.
The association board must allow any duly elected board member to participate in any meeting of the board and vote on any action before the board, unless that board member has a financial conflict of interest with the issue at hand.
The management company is an agent of the association and can perform any function requested by the board. Most associations assign rule enforcement to the community manager and leave the board to deal with any appeals. The community manager cannot act in place of the board in the appeal process.
Dennis
Thank you for the reply on the Board filing violations against owners and omitting board members from voting.
In regard to violations reported by a board member and owners, against specific board members conduct and owners conduct that violate the Code’s Of Conduct recently passed, does the board have to hold board meetings and vote? Or can the POA President or the Management Company just ignore or dismiss them?
Sorry if I did not clearly show that most of the content was about the board dealings with the above.
Thank you,
Cindy