Seeking Input: Handling Sensitive Matters Under A.R.S. § 33-1804
Hello, HOA friends,
I’m reaching out to get your insights on an important issue we’re currently facing in our HOA regarding privacy, transparency, and the interpretation of A.R.S. § 33-1804.
The statute states that HOA boards “may” enter into a closed (executive) meeting for specific topics. However, some board members interpret the use of “may” as discretionary and believe it’s not a requirement to hold these discussions in private. As a result, there is debate within our board about whether to:
Publish homeowner violations for all HOA members to see.
Disclose the names of homeowners in arrears.
While the intent of such actions may be to increase transparency, I am deeply concerned about the potential for privacy violations, conflicts with homeowners, and the HOA’s exposure to legal risk.
I’d love to hear from others in this group:
How do your HOAs handle sensitive matters like violations and arrearages?
Have you encountered similar debates, and how did you resolve them?
Do your boards use executive sessions for these discussions, and what policies or practices have you implemented to avoid conflicts?
Our goal is to find a balanced approach that complies with Arizona law, respects homeowner privacy, and avoids unnecessary disputes.
Looking forward to hearing your thoughts, experiences, and advice!
Thanks in advance for your help!
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Bruce,
The last subsection of the statute provides all the guidance you need. If in doubt you must interpret the statute in favor of open meetings. Violation are never personal information and are never allowed to be discussed in executive sessions except on the direct request of the homeowner. Assessment delinquencies are a different issue. While I believe that there is real value for the community to see and understand how the association enforces assessment delinquencies without any exposure to the financial status of the homeowner that may be the cause of that delinquency. Because of that it is best for the board to address assessment delinquency in closed session.
One thing that is very important for every board member to understand is that no matter what any attorney or community manager tells you . The law only allows “consideration” of issues in executive sessions and not any action.relative to those issues.
All violations of community document are public information because anyone with a knowledge of the governing documents can walk around your community and directly observe any and every violation. So posting a list of cited violation is no privacy concern. But actually can be a benefit to the community to demonstrate the consistent enforcement of the governing documents by the association. Compliance is not an option and not based on whether you are a friend of the board or not. They are enforced fairly and equally.
I would definitely refrain from posting any names of people that are in arrears in assessment payments, mostly because most community manager cannot actually figure that out on their own. Mistakes often happen based on failure of management staff from accounts receivable and collection staff. If a homeowner is current but the management company made a mistake and considers them delinquent and you post that information than you are falsely defaming that individual and you should be sued by the homeowner.
Dennis
Hi Dennis,
Thank you for your detailed response and perspective on this matter. I truly appreciate the insight and agree that interpreting the statute in favor of open meetings is essential. However, there are a few additional factors I’d like to address that pertain to my specific situation:
Posting Violations on a Public Message Board:
In this case, the violation and subsequent actions taken by the HOA were posted on a message board located at the entrance to the subdivision. This entrance is not gated and provides access to other subdivisions in the area. As such, this message board is visible to a much broader audience, not just HOA members.
While I understand your point that violations of governing documents may be publicly observable, the choice to formalize and display violations in this manner raises concerns about whether this aligns with the intent of the law and best practices for HOA governance.
ARS 33-1803 – Notice of Violations:
While the HOA did provide written notice to the homeowner regarding the violation, it did not fully comply with the requirements outlined in A.R.S. § 33-1803. Specifically, the notice did not include:
The date the violation was observed.
The first and last name of the person who observed the violation.
These omissions mean the notice was not fully compliant, which could undermine the HOA’s position if challenged.
Executive Session Limitations:
I appreciate your clarification regarding the distinction between discussion and action in executive sessions. This is a critical point for my board to understand. Any actions taken relative to discussions in executive session must still occur in an open meeting, per the law.
Assessment Delinquencies:
I agree with your point about refraining from posting the names of homeowners who are allegedly delinquent. Ensuring accurate record-keeping is essential, and any errors could result in significant conflict or mistrust within the community.
My goal here is to ensure I balance transparency, compliance with Arizona law, and respect for homeowner rights. I appreciate the emphasis on demonstrating consistent enforcement of governing documents and the value of compliance being applied equally to all members. However, it’s also vital for me to ensure all procedures align with statutory requirements to avoid unnecessary challenges.
Thank you again for your thoughtful feedback—it’s helping me refine my approach and ensure I’m operating in the best interest of the community. I’d welcome any additional thoughts or suggestions as I navigate this situation.
Bruce
Bruce,
As I mentioned earlier I fully believe that violations of the governing documents are not personal and not subject to closed session considerations, but when someone or the association board decided to post all violators on a public bulletin board that people outside of the neighborhood can see, I really begin to wonder what exactly is the motivation of that action and believe that such an action is totally unnecessary and vindictive, and not at all inducive of maintaining the best interest of the community. The is absolutely no legitimate purpose for posting the name of violators on public display. And I significantly doubt that such an action would hold up in court if challenged.
There is a due process of law specified in the statutes for violation enforcement for a purpose (specifically the constitutional protections applied to any citizen prior to the application of any penalty) the association does not have the authority to ignore that due process and get to fine anyone. Each and every violation and fine applied by the association could be challenged in court and based on the duty of the board of directors to comply with the law the individual indemnification from liability would be lost by every board member that knowingly violated the law.
I commend you for your consideration to balance the protection of member rights and compliance with the law. But consider this becasue an issue is not included in the subject matter that can be considered in closed session does not mean that the board is entitled to display those violations anywhere. You have to deal with violation is open meeting and it should be left to that. If someone wants to see records of the violations cited in the last month that is a public record of the association available to any member to view. It is not private information that is protected from public record request.
There are over 10,000 different communities in this state and the law has to apply to all of them equally. As such it will bound the actions of the association into what you can and cannot do it does not describe what any board “should” do in all cases. This is where common sense and a basic understanding that the purpose of these communities is to protect the value of the properties in the communities not to harass, embarrass or intimidate the homeowners. As board members ask yourself every day how can i make this community a better place for people to live and raise their families while maintaining the requirements of the CC&Rs. The open meeting law are there to ensure transparency of the actions of the association for one reason only. Transparency build trust, Trust build respect, Respect builds communities.
Dennis
Dennis,
I am curious about this: “Publish homeowner violations for all HOA members to see.” Dennis, without naming names (unless you are comfortable doing so), are there other HOA’s that you know of that publish homeowner violations to all members (e.g., by posting them to a *secure* community portal or perhaps by a newsletter or email blast)?
Tx
Ray,
Because multiple associations do something does not make it right. While that information is not private information and available for anyone to request why make it public. What purpose does it serve? This is simply passive aggressive behavior to embarrass homeowners. Your community is free to do the same but you are then telling your community that you don’t care about how your actions affect them. Your association has a right to know that you treat all members fairly so address violations in open session and then individually with the affected homeowner.
My thoughts
Dennis
Tx, Dennis.
I wasn’t trying to condone passive-aggressive behavior. I was just wondering if other HOAs published such information as that would demonstrate that they treat such information as not privileged.
The problem is that most association treat violations as personal information and protect it that way while it is clearly not personal. It’s a provision of the governing documents and visible to anyone outside the home. This way they can hide their unfair treatment or selective enforcement of individuals, again in direct violation of the law.
Dennis