Case Summary
| Case ID | 18F-H1817005-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2018-05-10 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Gary W. Moselle | Counsel | — |
|---|---|---|---|
| Respondent | Desert Mountain Master Association | Counsel | Curtis Ekmark |
Alleged Violations
A.R.S. § 33-1804
Outcome Summary
The Administrative Law Judge denied the petition, concluding that the respondent HOA did not violate A.R.S. § 33-1804 because the committee meeting in question was not a “regularly scheduled committee meeting” required to be open to all members.
Why this result: The specific language of A.R.S. § 33-1804(A) only requires 'regularly scheduled committee meetings' to be open, and the committee in question did not meet at regular intervals.
Key Issues & Findings
Whether the DMMA Communications Committee meeting was subject to the open meetings law.
Petitioner, a member/homeowner, alleged the HOA violated the open meetings statute by closing a September 6, 2017, committee meeting. The ALJ determined the committee did not hold 'regularly scheduled' meetings and thus was not subject to the open meetings law.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 33-1804
Analytics Highlights
- A.R.S. § 33-1804
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
- State ex rel. Thomas v. Contes
- Marsoner v. Pima County
Audio Overview
Decision Documents
18F-H1817005-REL-RHG Decision – 634096.pdf
Briefing Document: Moselle v. Desert Mountain Master Association
Executive Summary
This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.
The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.
The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.
Case Background and Timeline
The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.
September 1, 2017
Gary W. Moselle files a petition with the Arizona Department of Real Estate.
September 5, 2017
The Department issues a notice to DMMA regarding the petition.
September 6, 2017
The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.
September 18, 2017
DMMA files an answer to the petition, denying all allegations.
November 17, 2017
The initial hearing is held before the Office of Administrative Hearings.
December 7, 2017
The Administrative Law Judge issues an initial decision denying the petition.
January 4, 2018
Moselle files a request for a rehearing, citing newly discovered material evidence.
January 26, 2017
The Department grants the request for a rehearing.
April 20, 2018
A rehearing is conducted.
May 10, 2018
The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.
The Central Legal Question: Interpretation of A.R.S. § 33-1804
The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:
“…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…”
The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.
Arguments Presented
Petitioner’s Position (Gary W. Moselle)
The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.
• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).
• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.
• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.
Respondent’s Position (Desert Mountain Master Association)
The Respondent advocated for a narrower, more literal interpretation of the statute.
• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”
• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.
• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.
Judicial Findings and Legal Conclusions
The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.
1. Statutory Interpretation and Plain Language
The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.
2. Petitioner’s Contradictory Testimony
A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:
“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)
The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.
3. Specific Language Overrides General Policy
The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:
“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) 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.”
This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.
Final Order and Implications
Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.
Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.
This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.