Case Details
– Petitioner: Debra K. Morin
– Respondent: Solera Chandler Homeowners’ Association, Inc.
– Case Number: Not explicitly provided in the document.
– Date and Time of Hearing: October 29, 2020
– Judge’s Name: Tammy L. Eigenheer
– Whether the Petitioner was Successful: Partially successful.
Case Description
In the matter brought before the Arizona Department of Real Estate, Debra K. Morin (“Petitioner”) contested the practices of the Solera Chandler Homeowners’ Association, Inc. (“Respondent”) regarding alleged violations of A.R.S. § 33-1804, which governs open meetings for associations. Debra filed a formal petition on July 10, 2020, alleging Respondent conducted non-privileged association business in closed sessions without due notice and did not provide homeowners an opportunity to participate in discussions before key votes were taken.
The Complaints Were Specifically Focused On Two Main Allegations
1. That the Respondent conducted non-privileged business during closed sessions (where meetings should have been open) without providing the necessary agendas and the required 48-hour notice, thereby limiting homeowner participation.
2. That the Respondent conducted emergency executive sessions without appropriate justification under the open meeting law provisions, thus failing to comply with the notice requirements.
The Respondent attempted to dismiss these allegations based on the Petitioner’s alleged failure to pay a necessary filing fee. However, the proceedings led to clarification of the specific issues to be pursued. During the hearing, it was acknowledged that various executive sessions occurred from March to August 2020, and the Respondent argued that due to the COVID-19 pandemic, in-person meetings were not feasible, which justified their actions under A.R.S. § 10-3821.
The Administrative Law Judge, Tammy L. Eigenheer, concluded that while the Respondent improperly handled non-privileged business in a manner not compliant with A.R.S. § 33-1804, the Petitioner did not succeed in proving all her allegations, particularly regarding the emergency executive sessions.
Ultimately, the Judge ruled in favor of the Petitioner on the first allegation, requiring the Respondent to reimburse her filing fee of $500 and ensuring ongoing compliance with the provisions of A.R.S. § 33-1804. The order noted the challenges posed by the pandemic but still upheld the necessity of adhering to open meeting protocols. The conclusion effectively underscored the importance of transparency and homeowner involvement in association governance.
Analysis Of The Case: Debra K. Morin Vs. Solera Chandler Homeowners’ Association, Inc.
Debra K. Morin Raised Two Main Complaints Against The Solera Chandler Homeowners’ Association
1. Complaint #1: The association conducted non-privileged business in closed sessions, failing to provide agendas, 48-hour notice, or opportunities for member commentary prior to voting.
2. Complaint #2: The association improperly conducted privileged business under the guise of emergency executive sessions without complying with the necessary legal requirements.
The Pertinent Law Governing This Dispute Includes
– A.R.S. § 33-1804: Requires open meetings for homeowners’ associations, establishes protocols for closing meetings, and mandates adequate notice and opportunity for member engagement.
– A.R.S. § 10-3821: Allows actions to be taken via unanimous written consent but does not override the open meeting requirements of § 33-1804.
Outcome Of The Hearings
– For Complaint #1: The Administrative Law Judge ruled in Petitioner’s favor, finding that the Respondent had indeed conducted business in closed sessions improperly. The Judge recognized that while the pandemic presented challenges, it did not absolve the association from adhering to the open meeting statutes.
– For Complaint #2: The Judge sided with the Respondent, determining that the evidence did not substantiate that the May 12, 2020 executive session was improperly conducted as an emergency session.
Why The Petitioner Won Complaint #1
1. Evidence of Procedures: The Petitioner effectively demonstrated that Respondent failed to conduct open meetings as required by A.R.S. § 33-1804.
2. No Compliance Established: The Respondent was found to have improperly used closed sessions for conducting regular business that should have been open to members, violating the policy favoring transparency.
Recommendations For The Petitioner
1. Document Everything: Maintain meticulous records of all executive session agendas, actions taken, and communications regarding meeting notifications.
2. Clarity in Allegations: Ensure clarity and specificity in allegations to avoid motions to dismiss due to procedural technicalities, focusing on evidence that directly ties to claimed violations.
What The Respondent Could Have Done Differently
1. Adherence to Disclosure Requirements: The Respondent should have ensured compliance with statutory notice and open meeting regulations, even during emergency conditions.
2. Incorporation of Member Feedback: Actively seeking to involve homeowners by providing opportunities to participate in discussions could have mitigated allegations of non-compliance.
Advice For Similar Cases
– Use of Clear Agendas: Always provide clear agendas for meetings and maintain thorough minutes that reflect both the substance of discussions and the rationale for any closed session.
– Emergency Protocols: Clearly document and communicate any meeting declared as an emergency, including the justification for not meeting notification requirements to avoid potential disputes.
Conclusion
The Administrative Law Judge’s decision underscored the importance of transparency and adherence to laws governing homeowners’ associations, particularly in maintaining open governance practices during challenging circumstances such as a pandemic. Moving forward, both parties in disputes of this nature should prioritize clear communication and comprehensive documentation to support their respective positions.