DAVIS MILES McGUIRE GARDNER

 

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ARIZONA HOMEOWNERS ASSOCIATION

OPEN MEETING LAW 

 

A PRESENTATION FOR

COMMUNITY MANAGERS

AND

ASSOCIATION BOARD MEMBERS 

www.DavisMiles.com

 

THE ARIZONA HOA OPEN MEETING LAW

 

§33-1804. Open meetings; exceptions 

A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the association and board of directors 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 before the board takes formal action on an item under discussion 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. 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. 

B. Notwithstanding any provision in the community documents, all meetings of the association and the board shall be held in this state. A meeting of the association shall be held at least once each year. Special meetings of the 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. Unless otherwise provided in the articles or bylaws of 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.  Unless otherwise provided in the articles or bylaws of the association, 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.

 

HIGHLIGHTS OF THE HOA OPEN MEETING LAW 

I.     GENERAL TRANSPARENCY 

       A.    All meetings of the association and/or the board are open to all members or their designated representatives.

       B.    Provisions in CCRs or other governing documents cannot override the minimum transparency and openness
requirements in the open meeting law. 

II.  A REASONABLE OPPORTUNITY TO SPEAK 

       A.    The board must allow any “desiring member or designated representative” the opportunity to attend and speak before the board takes any formal action on any item under discussion. 

                        1.   The board may place reasonable time limits per speaker.

                        2.   The board must provide the opportunity for opposing sides to speak. 

III. EXECUTIVE SESSIONS 

     
       A.    The board may retreat into executive session (“closed meeting”) for any of the following purposes:

       –     LEGAL: To hear, or to further consider, the advice of legal counsel;

       –     LAWSUITS: To discuss pending or potential litigation.  This would include discussions regarding legal action to collect assessments; to enforce the CCRs; to preserve the CCRs against a homeowner’s lawsuit; third-party legal action (such as with contractors or insurance companies); and administrative actions;

       –     PERSONAL:  Personal, health, or finance issues with respect to any individual member; and

       –     EMPLOYMENT: The performance, health, compensation, or complaints directed against any individual working for the association or working under the direction of the association.

 

IV.  TIME, MANNER AND PLACE

      
       A.    Association meetings must take place at least once per calendar year.

      
       B.    Meetings may be called by: (1) the President; or (2) Board Majority; or (3) 25% of the voting members (or less, if specified in the CCRs or bylaws).

 
      C.    The association must give at least ten days, and no more than fifty days, notice of any general association meeting to all members via hand-delivery or US mail.  Only forty-eight hours notice, via newsletter or ‘conspicuous posting’ or other reasonable notice method is necessary for meetings of the board of directors. 

Any meeting notice must include the date, time and place of meeting, and if the meeting is a “special meeting” the purpose of the meeting must be stated. 

FREQUENTLY ASKED QUESTIONS

1.     Does Arizona’s broad open meeting law apply to HOA meetings? 

No.  The Arizona open meeting laws found in A.R.S. §§ 38-431 through 431.09 require that any meeting of any public body must be open to all interested persons, including the public-at-large.  However, the AZ Attorney General’s office has consistently opined for decades that HOA’s are not “public bodies” in the context of the open meeting laws.  Thus, A.R.S. §33-1804 and the open meeting law for Condominiums are the only state statutes or regulations that specifically govern the open meetings of associations. 

2.       Is there any difference between the open meeting laws for Planned Community HOAs and Condominium Associations? 

No.  The meeting laws in A.R.S. §33-1804 (planned unit associations) and §33-1248 (condominium associations) are identical in all substantive respects. 

3.      Are committee meetings subject to the open meeting laws? 

There is a sincere difference of opinions among legal practitioners on this issue.  Some say that the statute only addresses instances when members can speak before the board makes decisions, and thus the statute is limited to only those meetings when the board is present.  Other attorneys would argue that a committee “meeting” is still a gathering to discuss association business regardless of whether final decisions occur.  No case law precedent exists regarding this issue.  

4.      Would the open meeting law apply to ‘work sessions’ or casual meetings where the board is meeting but does not intend to make any final decisions? 

It is generally held that the open meeting law applies to informal, casual, or work sessions which include attendees resulting in a board quorum. 

5.      Do open meeting laws apply to other forms of discussion, deliberation, and information sharing such as real-time texting, online chatting, or cell phone conferences? 

Yes, for certain types of real-time communication.  Since the day the open meeting law was introduced in 1994, a number of new and powerful forms of communication have become ubiquitous.  While these new forms of communication are important tools that can improve association administration and communication, it is quite possible that the open meeting laws would apply to these communication forms, otherwise an unscrupulous board could simply circumvent open meeting laws by conducting the majority of their business in real time in covert texting or online chats.  E-mails do not constitute a meeting under the current version of the open meeting laws.