Case Summary
| Case ID | 18F-H1818035-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2018-12-26 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | partial |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Tom Barrs | Counsel | — |
|---|---|---|---|
| Respondent | Desert Ranch Homeowners' Association | Counsel | — |
Alleged Violations
Bylaw 2.4
Outcome Summary
In the initial decision, Petitioner established violations of A.R.S. § 33-1812(A)(7) (election materials disposal) and A.R.S. § 33-1804 (closed/improperly noticed meetings), but failed to establish a violation of Bylaw 2.4 (Issue 1). The rehearing only addressed Issue 1, which was ultimately dismissed.
Why this result: Petitioner lost Issue 1 (Bylaw 2.4 violation) because the ALJ found that while the Bylaw applied to Members, Petitioner failed to show it prohibited a Director from raising concerns about election validity after the meeting adjourned, and the investigation was initiated by a Board member immediately following the meeting.
Key Issues & Findings
Violation of Bylaw 2.4 (Election Objection Waiver)
Whether Respondent violated Bylaw 2.4 when it acted on an objection to the election results raised the day after the Annual Meeting, given that the Bylaw requires members to object to irregularities 'at the meeting' to avoid waiver.
Orders: The Petition was dismissed as to Issue 1.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 41-2198.01
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- A.A.C. R2-19-119(B)(2)
- Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
- A.R.S. § 33-1813
- A.R.S. § 33-1811
- A.R.S. § 33-1812
- A.R.S. § 33-1804
- Bylaw 3.3
- Bylaw 2.4
Audio Overview
Decision Documents
18F-H1818035-REL-RHG Decision – 678304.pdf
18F-H1818035-REL-RHG Decision – 678305.pdf
Barrs v. Desert Ranch HOA: Case Briefing
Executive Summary
This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.
An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.
The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.
Case Overview
This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.
Case Detail
Information
Case Number
18F-H1818035-REL-RHG
Petitioner
Tom Barrs
Respondent
Desert Ranch Homeowners’ Association
Presiding Judge
Tammy L. Eigenheer, Administrative Law Judge
Initial Hearing
Not specified in document
Rehearing Date
December 6, 2018
Decision Date
December 26, 2018
Key Individuals:
• Tom Barrs: Petitioner.
• Catherine Overby: HOA President, appeared for Respondent.
• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.
• Jerome Klinger: Candidate initially announced as a winner of the election.
• Patrick Rice: Board member at the time of the election.
Chronology of the 2017 Election Dispute
1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.
2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.
3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.
4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.
5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.
6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.
7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.
8. May 10, 2017: The Board of Directors holds an organizational meeting.
Procedural History and Allegations
Initial Petition and Hearing
• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.
• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.
• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”
The three core issues alleged by the petitioner were:
1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.
2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.
3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.
Initial Decision
Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:
• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.
• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.
• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.
Rehearing and Final Order
• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.
• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.
Judicial Analysis and Final Rulings
The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.
Key Bylaw and Legal Standard
• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:
• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Analysis of Issue 1: Violation of Bylaw 2.4
• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.
• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.
• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.
◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.
◦ Bylaw 2.4 applies specifically to a “Member.”
◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.
◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.
Final Order
Based on the analysis from the rehearing, the judge issued the following order:
IT IS ORDERED that the Petition be dismissed as to Issue 1.
This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.