Case Summary
| Case ID | 21F-H2120020-REL-RHG |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-02-02 |
| Administrative Law Judge | Jenna Clark |
| Outcome | loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Sandra Swanson & Robert Barnes | Counsel | Kristin Roebuck Bethell, Esq. |
|---|---|---|---|
| Respondent | Circle G Ranches 4 Homeowners Association | Counsel | Samantha Cote, Esq. |
Alleged Violations
ARIZ. REV. STAT. § 33-1805
Outcome Summary
The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.
Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.
Key Issues & Findings
Failure to comply with voting records request (regarding assessment and cumulative voting records)
Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.
Orders: Petitioners' petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1805
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2199.02(B)
- ARIZ. REV. STAT. § 41-1092.08(H)
- ARIZ. REV. STAT. § 12-904(A)
- ARIZ. ADMIN. CODE R2-19-119
Analytics Highlights
- ARIZ. REV. STAT. § 33-1805
Audio Overview
Decision Documents
21F-H2120020-REL Decision – 944169.pdf
21F-H2120020-REL Decision – 944171.pdf
Briefing Document: Swanson & Barnes v. Circle G Ranches 4 HOA
Executive Summary
This document synthesizes the findings from the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.
The Petitioners alleged the Association failed to make records “reasonably available” by providing redacted ballots and separate, unredacted envelopes, a method that prevented them from matching specific votes to individual homeowners. They argued this, along with an initial request to sign a nondisclosure agreement (NDA), constituted an unlawful barrier to access.
The Association countered that it had a duty to balance the Petitioners’ request with the privacy and safety of its members, citing concerns about potential harassment. It argued that by providing the totality of the requested information—albeit in a separated format—it fulfilled its statutory obligations in a reasonable manner and within the required timeframe.
Ultimately, the ALJ ruled in favor of the Association. The decision concluded that the Petitioners failed to meet their burden of proof. The judge found that the Association’s actions—including the initial NDA request and the methodology of providing separated documents—did not constitute a violation of the statute. While deemed “not ideal,” the method was found to be “reasonable under the totality of underlying circumstances,” and the petition was denied.
Case Background
This matter was adjudicated in the Arizona Office of Administrative Hearings (OAH) following a petition filed with the Arizona Department of Real Estate. The case revolves around a homeowner’s right to access association records versus an association’s duty to protect its members’ privacy.
Parties Involved
Representation
Petitioners
Sandra Swanson & Robert Barnes
Kristin Roebuck Bethell, Esq.
Respondent
Circle G Ranches 4 Homeowners Association
Samantha Cote, Esq.
Administrative Law Judge (ALJ) Jenna Clark
Core Dispute
The central conflict stems from records requests made by the Petitioners in January 2020 for ballots and related documents from two separate votes:
1. A vote on or about October 28, 2019, regarding an increase in dues.
2. A vote in December 2019 regarding a proposed Declaration Amendment to prohibit cumulative voting.
The Petitioners alleged that the Association’s response failed to comply with ARIZ. REV. STAT. § 33-1805, which mandates that records be made “reasonably available” for examination.
Procedural History
The dispute followed a lengthy procedural path, beginning with the Petitioners’ initial filing on September 22, 2020. An initial Administrative Law Judge Decision was issued on May 17, 2021. The Petitioners requested and were granted a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.” The final hearing detailed in this decision took place on January 13, 2022, after several continuances requested by both parties.
Chronology of Key Events
Oct 4, 2017
The Association’s Board approves and adopts the “Rule Requiring Secret Ballots,” mandating secret ballots for votes on special assessments.
Jan 6, 2020
Petitioners submit a written request to view the votes for the proposed amendment on cumulative voting.
Jan 13, 2020
The Association Board meets to discuss the request. Citing member privacy concerns and past complaints of “harassing” behavior by Petitioners, the Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing ballots. Petitioners decline.
Jan 16, 2020
Petitioners’ counsel sends a formal letter requesting all ballots and related documents for both the dues increase vote and the cumulative voting amendment.
Jan 30, 2020
The Association’s attorney responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners.” The letter confirms the records will be made available for inspection.
Feb 7, 2020
Petitioners inspect records at the attorney’s office. They are provided two stacks of documents: redacted ballots and unredacted envelopes. This method, designed to protect voter identity, prevents matching ballots to specific voters. Petitioners review the cumulative voting records for 3.5 hours but do not review the assessment-related documents.
Aug 5, 2020
Petitioners’ attorney sends a new letter demanding “unredacted ballots…along with all envelopes” for the dues increase vote, alleging the secrecy of the ballots was optional. No additional documents are provided by the Association.
Sep 22, 2020
Petitioners file a formal petition with the Arizona Department of Real Estate, initiating the legal proceedings.
Jan 13, 2022
A rehearing is held before ALJ Jenna Clark, where both parties present oral arguments but no new evidence or testimony.
Feb 2, 2022
ALJ Clark issues the final Administrative Law Judge Decision, denying the Petitioners’ petition.
Central Legal Arguments
At the January 13, 2022, rehearing, both parties presented their final arguments regarding the alleged violation of ARIZ. REV. STAT. § 33-1805.
Petitioners’ Position (Swanson & Barnes)
• Statutory Requirement: The statute requires unredacted copies of requested documents. The law specifies what records must be produced, not how they can be produced in a modified format.
• Unlawful Barrier: The Association erected an unlawful barrier by providing documents in a manner that made it impossible to “cross reference (i.e. match) the votes with the purported voters.” This did not satisfy the “reasonably available” standard.
• Improper NDA Condition: The Association had no right to condition access to the records on the signing of an NDA, as this is not one of the enumerated exceptions in the statute for withholding documents.
• No Expectation of Privacy: The ballots were not truly “secret ballots” because some homeowners’ names appeared on them or were signed. Therefore, voters could not have held a reasonable expectation of privacy.
Respondent’s Position (Circle G Ranches 4 HOA)
• Statutory Compliance: The Association was not in violation because the statute does not dictate the specific manner or format in which records must be made available. They argued they had “timely provided the totality of records Petitioners had requested.”
• Balancing of Duties: The Association devised a method (providing redacted ballots and separate unredacted envelopes) to fulfill its duty to provide records while simultaneously upholding its responsibility to protect members from potential harassment or retaliation, thereby satisfying all its obligations.
• Reasonable Protection: The request to sign an NDA was a reasonable and necessary step to protect members’ privacy regarding their secret ballot votes. Furthermore, it was ultimately irrelevant because the records were provided even after the Petitioners declined to sign.
• Timeliness: All information and documentation requested by the Petitioners had been timely provided to them.
Administrative Law Judge’s Findings and Decision
The ALJ’s decision was based on an interpretation of the relevant statute and a review of the evidence and arguments presented. The Petitioners bore the burden of proving a violation by a preponderance of the evidence.
Governing Statute: ARIZ. REV. STAT. § 33-1805(A)
“Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination.” (Emphasis added.)
Key Conclusions of Law
1. NDA Request: The Respondent’s request that Petitioners sign an NDA did not constitute a violation of the statute.
2. Timeliness of Response: The Respondent was required to comply with the January 16, 2020 request by January 31, 2020. The response from the Association’s attorney on January 30, 2020, and the subsequent inspection on February 7, 2020 (a date chosen by Petitioners) did not establish a violation of the 10-day rule.
3. Manner of Delivery: The method used to provide the documents—redacted ballots and separate unredacted envelopes—did not violate ARIZ. REV. STAT. § 33-1805. The ALJ determined that the “Petitioners timely received the totality of the documents from their records request(s)” and that the record did not suggest the documents were not made “reasonably available.”
Final Determination
The ALJ concluded that while the Association’s method of document delivery was not perfect, it was legally sufficient.
“While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”
Because the Petitioners did not successfully prove their case, the judge ruled against them.
“…the undersigned Administrative Law Judge must again conclude that because Petitioners did no sustain their burden of proof that the Association committed a violation of ARIZ. REV. STAT. § 33-1805, their petition must be denied.”
Final Order
IT IS ORDERED that Petitioners’ petition is denied.
The decision, issued February 2, 2022, is binding on the parties, with any appeal required to be filed with the Superior Court within thirty-five days of the order being served.