Case Summary
| Case ID | 19F-H1919046-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-05-30 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Vicky Glover | Counsel | — |
|---|---|---|---|
| Respondent | Foothills Community Association | Counsel | B. Austin Baillio |
Alleged Violations
A.R.S. § 33-1804
Outcome Summary
The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.
Key Issues & Findings
Open Meetings and Member Right to Speak (DRC and Email Meetings)
Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: respondent_win
- A.R.S. § 33-1804
- A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818
Analytics Highlights
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
- A.R.S. § 33-1804
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
Audio Overview
Decision Documents
19F-H1919046-REL Decision – 712028.pdf
Administrative Law Judge Decision: Glover v. Foothills Community Association
Executive Summary
On May 30, 2019, an Administrative Law Judge (ALJ) for the State of Arizona denied a petition filed by homeowner Vicky Glover against the Foothills Community Association (FCA). The decision concluded that the FCA’s Design Review Committee (DRC) did not violate Arizona’s open meeting law, A.R.S. § 33-1804.
The petition centered on two core allegations: 1) that the DRC improperly held “email meetings” to decide on non-emergency matters, and 2) that it unlawfully prevented members from speaking at appropriate times during its meetings.
The ALJ’s ruling rested on a strict interpretation of the statute’s plain language. The judge determined that the specific right for members to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings like the DRC. For committee meetings, the statute only requires allowing members to speak at an “appropriate time,” and the DRC’s decision to restrict Ms. Glover from speaking about another member’s application was deemed reasonable. Regarding the email communications, the ALJ concluded they do not constitute “regularly scheduled committee meetings” and are therefore not subject to the open meeting requirements stipulated in the statute. The general state policy favoring open meetings was found insufficient to override these specific statutory provisions.
Case Overview
Details
Case Name
Vicky Glover, Petitioner, vs. Foothills Community Association, Respondent
Case Number
19F-H1919046-REL
Jurisdiction
Arizona Office of Administrative Hearings
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
May 10, 2019
Decision Date
May 30, 2019
Petitioner’s Allegations
Vicky Glover filed a petition with the Arizona Department of Real Estate on January 23, 2019, alleging that the Foothills Community Association violated state statutes governing planned communities (A.R.S. Title 33, Chapter 16). The specific allegations against the association’s Design Review Committee (DRC) were:
1. Unlawful Meetings: The DRC held unannounced email meetings to vote on non-emergency matters, violating open-meeting statutes.
2. Denial of Speech: The DRC refused to allow community members to speak at appropriate times during its regularly scheduled meetings.
Factual Background
The parties did not dispute the underlying events of the case. The established facts are as follows:
• Organizational Structure:
◦ The Foothills Community Association (FCA) is a homeowners association in Phoenix, Arizona.
◦ Its Board of Directors consists of seven members and meets on the fourth Wednesday of the month.
◦ The Design Review Committee (DRC) is appointed by the Board, consists of five members (two of whom are also on the Board), and holds its meetings on the second Wednesday of the month.
• Incidents Leading to Petition:
◦ On December 13, 2018, and January 9, 2019, Petitioner Vicky Glover attended and recorded DRC meetings.
◦ During these meetings, Ms. Glover was not permitted to speak about other members’ pending requests being discussed by the committee.
• Committee Practices:
◦ During meetings, DRC members were heard discussing plans to share additional information on certain requests via email after the meeting.
◦ Based on this emailed information, members could then approve or deny the request.
◦ Any decisions made via email between meetings were subsequently “ratified” at the next formal DRC meeting.
◦ The FCA Manager, Pat Wontor, denied that the DRC took initial action via email, stating the practice was only for gathering information on matters already discussed in a meeting.
Legal Framework and Statutory Interpretation
The central legal issue was the interpretation of Arizona’s open meeting law for planned communities, A.R.S. § 33-1804. The burden of proof was on the Petitioner to show a violation by a preponderance of the evidence.
The Relevant Statute: A.R.S. § 33-1804
The ALJ’s decision focused on two key subsections of the statute:
• A.R.S. § 33-1804(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… 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…”
• A.R.S. § 33-1804(F): States that it is the policy of the state that all meetings “be conducted openly” and that the provisions of the section should be construed “in favor of open meetings.”
Analysis of the Right to Speak
The ALJ concluded that the DRC did not violate the statute by preventing Ms. Glover from speaking.
• Distinction Between Board and Committee Meetings: The judge’s interpretation hinged on the “plain language” of the statute. While members must be allowed to speak at an “appropriate time” at all open meetings, the specific right to speak after the discussion of an agenda item but before a formal vote is taken applies only to the Board of Directors, not to committees.
• “Appropriate Time” Determination: The statute does not define what constitutes an “appropriate time” for committee meetings. The ALJ found it was “reasonable for the DRC to determine that deliberation regarding a different member’s request was not an appropriate time for Petitioner to speak.”
• Conclusion: The DRC’s actions during the December 2018 and January 2019 meetings were not a violation of A.R.S. § 33-1804.
Analysis of “Email Meetings”
The ALJ concluded that the DRC’s email communications were not subject to the open meeting law.
• “Regularly Scheduled” Requirement: A.R.S. § 33-1804(A) explicitly applies to “regularly scheduled committee meetings.”
• Email Communications Did Not Qualify: The judge reasoned that email deliberations and decisions do not constitute “regularly scheduled” meetings because they “do not occur at a set time on a weekly, monthly, quarterly, or annual basis.”
• General Policy vs. Specific Language: While acknowledging the statute’s general policy statement in favor of open meetings (Subsection F), the ALJ ruled that this “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”
• Conclusion: The email communications, even if considered a “meeting of the DRC,” did not fall under the open meeting requirements of the statute.
Final Order and Conclusion
The Administrative Law Judge concluded that the Petitioner, Vicky Glover, “did not establish any violation of A.R.S. § 33-1804.” Based on this finding, the judge issued the following order:
IT IS ORDERED that Petitioner’s petition is denied.
The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.