Arizona Revised Statute 33-1804. Open meetings; exceptions
A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member’s representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member’s designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Persons attending may tape record or videotape those portions of the meetings of the board of directors and meetings of the members that are open. The board of directors of the association may adopt reasonable rules governing the taping of open portions of the meetings of the board and the membership, but such rules shall not preclude such tape recording or videotaping by those attending. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:
1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.
2. Pending or contemplated litigation.
3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.
4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
5. Discussion of a member’s appeal of any violation cited or penalty imposed by the association except on request of the affected member that the meeting be held in an open session.
B. Notwithstanding any provision in the community documents, all meetings of the members’ association and the board shall be held in this state. A meeting of the members’ association shall be held at least once each year. Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five per cent, or any lower percentage specified in the bylaws, of the votes in the association. Not fewer than ten nor more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member. The notice shall state the time and place of the meeting. A notice of any special meeting of the members shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The failure of any member to receive actual notice of a meeting of the members does not affect the validity of any action taken at that meeting.
C. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the corporation is prima facie evidence that notice was given as prescribed by this section. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the time and place of the meeting. The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.
D. Notwithstanding any provision in the declaration, bylaws or other community documents, for meetings of the board of directors that are held after the termination of declarant control of the association, all of the following apply:
1. The agenda shall be available to all members attending.
2. An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed until the next regularly scheduled board meeting. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.
3. A quorum of the board of directors may meet by means of a telephone conference if a speakerphone is available in the meeting room that allows board members and association members to hear all parties who are speaking during the meeting.
4. Any quorum of the board of directors that meets informally to discuss association business, including workshops, shall comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
E. It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions shall take into account this declaration of policy and shall construe any provision of this section in favor of open meetings.
My concerns revolve around state government mandating to HOA’s what they can and cannot do in enforcement of CC&R’s for each community. It seems that if those CC&R’s follow the guidelines set forth by state lawmakers when they were written, how then can the state come in and adopt revisions to statutes set previously by the state when those CC&R’s were enacted. Legislators can then take up ‘special interest’ projects to put these revisions into effect. When someone purchases a home, they are required to sign off on their knowledge of the CC&R’s for the sub-division their home is in. Why then do we allow these same homeowner’s the ability to ‘skirt’ the CC&R’s and maintain their home however they want without financial penalty from the HOA. The newest revised statutes take any power away from HOA’s, which then makes it almost impossible to enforce the CC&R’s as written. So then my question is, why does the state even require developers to have CC&R’s as part of their development plans? Why doesn’t the state just write their own? You can’t have it both ways! The state should require approval of the CC&R’s as they are written by the developer by a state committee made up of real estate attorney’s who know real estate law, unlike legislators who do not. Once those same CC&R’s are approved and stamped as being approved by the state, then lawmakers should not have the ability to go back and revise those statutes in place at the time of the adoption of the CC&R’s. That way we keep someone with their own agenda from pushing to change the homeowner rules written into those CC&R’s.
The HOA will suffer, for a long time, from this scenario. I speak as one who has retired from a large, public, company where I was the Procurement and Subcontract manager for one of the divisions. I was a Certified Purchasing Manager.
There is no recovery from this mess. There is a glaring Conflict of Interest. It is so blatant that I will waste no time explains my conclusion. It is so bad that it could, conceivably, provide a legal cause of action by one or more of the vendors who lost.
The Treaurer should resign. Immediately. The HOA reputation for fair dealing has been damaged. Competent vendors might decide not to bid if actions are wired, and their bids become known to a competitor.
The Board should apologize to the other bidders. Tell them the the person has resigned as Treasurer and is no longer on the Board.
This is the short version of the problem. I hope that it helps, though it is now too late to solve matters.
Board “Work Sessions”—–Since the Annual mtg. in March w/Board Member election, the BOD has held monthly “Work Sessions” each month (April-Sept.) about 2 wks. before the Regular BOD Mtg. The dates & times along with an Agenda are posted on the HOA website. I have made it a point to attend as many as possible–but have missed 2 of them.
Up until now, there have been either Work Session “Notes” published on the website, and at some of the meetings we’ve received graphs, spreadsheets, etc. as hand-outs–which have also been made available on the website.
I missed the Sept. Work Session where the Agenda called for the BOD to discuss several items listed as “Proposals”. (I assumed this to mean bids or documents from vendors for maintenance & improvements to our amenities & common areas, as we’d received from some of there previous work sessions.) I watched the website for about a week after the meeting for any Notes or Documents, and after not finding any, I sent an email to “The Board” asking where the notes were. I was informed in an email from a management employee that “Notes (or Minutes) aren’t being taken for the Work Sessions”– Funny how I can go back to the website & pull up notes & documents from past work sessions—some as far back as Jan. & Feb. 2014.
Approx. 50% of the proposals discussed at the Sept work session are listed on the Agenda for the Sept. Regular BOD mtg.’s “Old Business” and the other 1/2 of them are listed on the “New Business”. At the Aug work session we were told that one “our” vendors (well-known to be a vendor preferred by mgmt.) had bid approx. $600 K on one of these projects, and that they were hoping to get other bidders. I know the BOD makes the decisions for the HOA—but I can pretty much bet that getting info on any other bidders & bid amounts is gonna be a real fight. I feel that’s the reason that there’s no “Notes” from the last Work Session.
So my question is: Work Sessions are Open Meetings—are they REQUIRED to provide minutes / notes by law?
Our board had two “executive” meetings held at our Treasurer’s home last year. At the first meeting they discussed the need to terminate the current contract with the management company. At that same meeting, the Treasurer presented a bid proposal that she had already solicited. The bid she presented to the Board was from her employer.
The second meeting held was to vote on which bid of three companies to choose. The meeting was again held at the Treasurer’s home. The minutes show that the Board members reviewed and discussed the bids before taking a vote. The Treasurer abstained from the vote but she was allowed to participate in the review of bids and discuss the merits and detriments of each bid. The other two companies were not allowed the same type of representation. The monthly fees for the bids came to $495 for the first company, $875 for the second company, and $975 for the Treasurer’s employer. The Treasurer’s employer won the contract. At the beginning of the year I was elected to the Board and this is when I started to find all these issues.
The Treasurer maintains that since she could not possibly benefit, that she had no obligation to disclose the issue. My contention is that not only is it a violation of ARS 33-1811, Conflict of Interest laws, but that those “executive” meetings should have been held openly as well, since nothing discussed at the meeting that meets the “closed meeting criteria” under ARS 33-1804 sections A1-A5.
The Board insists that they felt that nothing was done wrong and all actions were executed with the best interests of the community in mind. I spoke to the President of the Treasurer’s employer, showed her an email from the Treasurer wherein she states that she wasn’t obligated to disclose anything, and I also showed that President the copies of the minutes that I was able to obtain for those “executive” meetings. The President of that management company decided to tell our Board that they would be terminating the contract and would like the opportunity to re-bid.
Am I the only one seeing a problem here or can everyone involved in this really be complicit?
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