Tag Archives: Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)

Richard E Jewell v. Casa Fiesta Townhouses Corp.

Posted on by

Case Summary

Case ID 22F-H2221005-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-10-25
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard E Jewell Counsel —
Respondent Casa Fiesta Townhouses Corp. Counsel Nicole Payne and Carlotta L. Turman

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The Petitioner's petition alleging the HOA violated conflict of interest statutes (A.R.S. § 33-1811) was dismissed because the Petitioner failed to sustain the burden of proof, as the conflict was deemed sufficiently disclosed prior to the board action.

Why this result: Petitioner failed to sustain the burden of proof on the alleged violation.

Key Issues & Findings

Board Member Conflict of Interest Disclosure

Petitioner alleged the HOA violated the statute regarding conflict of interest when the board hired the board president as a paid office assistant and the conflict was not disclosed by the president. The ALJ found that while the president did not disclose the conflict, the conflict was made known by another attendee prior to discussion and action, fulfilling the statutory purpose.

Orders: Petitioner’s petition be dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

Analytics Highlights

Topics: HOA governance, Conflict of interest, Statutory interpretation, Board voting
Additional Citations:

  • A.R.S. § 33-1811
  • A.R.S. § 33-1243(c)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • Arizona Administrative Code R2-19-119
  • A.R.S. § 1-211(B)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

Audio Overview

Decision Documents

22F-H2221005-REL Decision – 920344.pdf

Uploaded 2025-10-09T03:37:56 (89.3 KB)

Ronald Borruso v. Sunland Village East Association

Posted on by

Case Summary

Case ID 21F-H2121062-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-09-21
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronald Borruso Counsel —
Respondent Sunland Village East Association Counsel Nicholas Nogami, Esq. and Nikolas Eicher, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition filed by Ronald Borruso, finding that the Petitioner failed to meet the standard of proof (preponderance of the evidence) regarding the alleged violations of ARIZ. REV. STAT. § 33-1804 concerning meeting procedures and unauthorized board actions.

Why this result: The Petitioner failed to carry the burden of proof to show that the alleged violations of ARIZ. REV. STAT. § 33-1804 occurred.

Key Issues & Findings

Alleged violations regarding member speaking rights at May 27, 2021 meeting and unauthorized board meetings concerning Operations Manager job qualifications

Petitioner alleged the HOA violated open meeting laws by restricting member speaking rights during deliberations at a special meeting on May 27, 2021, and by holding improperly noticed meetings to approve job qualifications for an Operations Manager.

Orders: Ronald Borruso’s petition is dismissed.

Filing fee: $1,500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Analytics Highlights

Topics: Open Meetings, Right to Speak, Statute Violation, Burden of Proof, Dismissal, Filing Fee
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)

Audio Overview

Decision Documents

21F-H2121062-REL Decision – 912276.pdf

Uploaded 2025-10-09T03:37:37 (114.4 KB)

William Travis vs. The Val Vista Lakes Community Association

Posted on by

Case Summary

Case ID 18F-H1817017-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-02-02
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William Travis Counsel —
Respondent The Val Vista Lakes Community Association Counsel Mark K. Sahl, Esq.

Alleged Violations

Bylaws Article VIII
Bylaws Article VIII; Bylaws Article IV, Section 1
ARIZ. REV. STAT. sections 33-1812(A), (A)(1), and (A)(2)

Outcome Summary

The Petitioner's petition, raising three issues concerning the HOA's election nominating process, was dismissed entirely. The Respondent was deemed the prevailing party.

Why this result: The Petitioner failed to meet the burden of proof on all issues. The ALJ found that the Nominating Committee acted within the authority granted by the Bylaws regarding deadlines and nominee selection discretion, and the relevant election statute (A.R.S. § 33-1812) was not applicable to the nomination process.

Key Issues & Findings

Nominating Committee disregarded a September 29, 2017 deadline by which parties were to submit applications to nominate themselves.

Petitioner alleged the Nominating Committee violated Article VIII by accepting applications after the September 29th administrative deadline, arguing the deadline was a 'term[], limitation[], or rule[] adopted by the Board of Directors'.

Orders: The claim was dismissed. The deadline was an administrative deadline set by management, not a rule adopted by the Board, and therefore the Committee did not violate Bylaws Article VIII by accepting applications late.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Bylaws Article VIII

The Nominating Committee exceeded its authority by asking candidates questions that had the effect of imposing qualification requirements for the Board’s Directors that exceed those set out in the Bylaws.

Petitioner alleged that the Committee imposing questions (such as whether an applicant had filed a lawsuit against the Association) created unauthorized qualifications for the Board, violating the Bylaws.

Orders: The claim was dismissed. Bylaws Article IV Section 3 grants the Nominating Committee discretion to determine the number of nominations, and it was not unreasonable for the Committee to question applicants while exercising this explicit discretion.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Bylaws Article VIII
  • Bylaws Article IV, Section 3

By failing to include on the election-ballot members who had submitted 'self-nominations,' the Committee violated election statutes.

Petitioner asserted that because members could not vote for the four applicants the Nominating Committee did not nominate, the Committee engaged in proxy voting, violating election requirements set forth in A.R.S. § 33-1812.

Orders: The claim was dismissed. Because Bylaws Article IV Section 3 requires nominations to be made by the Nominating Committee, nominations are not 'votes allocated to a unit' and ARIZ. REV. STAT. section 33-1812 is not applicable.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. sections 33-1812(A)
  • ARIZ. REV. STAT. sections 33-1812(A)(1)
  • ARIZ. REV. STAT. sections 33-1812(A)(2)

Analytics Highlights

Topics: HOA Election, Nominating Committee, Bylaws Enforcement, Director Qualifications, Administrative Deadline, Statutory Interpretation, Self-Nomination
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. REV. STAT. section 33-1812

Audio Overview

Decision Documents

18F-H1817017-REL Decision – 615818.pdf

Uploaded 2025-10-08T07:03:35 (125.4 KB)





Briefing Doc – 18F-H1817017-REL


Administrative Hearing Briefing: Travis v. The Val Vista Lakes Community Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817017-REL, concerning a petition filed by William Travis against The Val Vista Lakes Community Association. The core of the dispute revolves around the actions of the Association’s Nominating Committee during the process for the November 16, 2017 Board of Directors election.

Mr. Travis raised three primary allegations: 1) the Committee violated Association Bylaws by accepting candidate applications after a stated September 29, 2017 deadline; 2) the Committee exceeded its authority by interviewing candidates, thereby imposing qualification requirements beyond those stipulated in the Bylaws; and 3) the failure to include all applicants on the ballot constituted a violation of Arizona state statutes related to proxy voting.

The Administrative Law Judge, Thomas Shedden, dismissed Mr. Travis’s petition in its entirety. The decision found that Travis failed to prove the application deadline was a formal rule adopted by the Board, concluding it was an administrative deadline set by the management company. The Judge determined that the Committee’s actions, including interviewing applicants, were a reasonable exercise of the discretion explicitly granted to it by the Bylaws. Finally, the Judge ruled that the state statute cited by Travis applies to the casting of votes, not the internal nomination process, and was therefore inapplicable to the Committee’s actions. The Val Vista Lakes Community Association was deemed the prevailing party.

——————————————————————————–

Case Overview

Case Number

18F-H1817017-REL

Petitioner

William Travis

Respondent

The Val Vista Lakes Community Association

Hearing Date

January 26, 2018

Decision Date

February 2, 2018

Presiding Judge

Thomas Shedden, Administrative Law Judge

Testifying Parties

William Travis (on his own behalf); Simone McGinnis (Association’s on-site manager)

Petitioner’s Allegations

William Travis’s petition, as amended, centered on three specific issues concerning the Nominating Committee’s conduct for the November 16, 2017 Board election:

1. Violation of Application Deadline: The Committee disregarded a September 29, 2017 deadline for candidate applications. Travis contended that this deadline was a “term, limitation, or rule adopted by the Board,” and by accepting applications after this date, the Committee violated Bylaws Article VIII.

2. Exceeding Authority and Imposing Qualifications: The Committee exceeded its authority by interviewing and questioning applicants. Travis argued that this process had the effect of creating new qualification requirements for Board Directors, beyond the sole requirement of Association membership outlined in Bylaws Article IV. He asserted the Committee had no authority to ask any questions.

3. Statutory Violation of Voting Rights: By failing to place all members who submitted “self-nominations” on the official election ballot, the Committee violated ARIZ. REV. STAT. § 33-1812(A). Travis claimed this action was tantamount to proxy voting because it prevented members from voting for or against certain candidates.

Key Factual Findings

Election and Nomination Timeline

• August 17, 2017: The Board of Directors appoints Cheryl Peterson-McCoy as the Nominating Committee Chairperson.

• September 12, 2017: The Association’s management company emails residents, announcing three open Board positions and an application deadline of September 29, 2017, at 5:00 p.m.

• By September 29, 2017: Four applications are received. At this point, the members of the Nominating Committee (other than the Chairperson) have not yet been selected.

• After September 29, 2017: The Association accepts four additional applications, including one from Mr. Travis. No revised notice is sent to the membership about an extended deadline.

• October 5, 2017: Mr. Travis, then a Board member, makes an email motion to extend the application deadline to October 16, which is denied.

• October 19, 2017: The Board formally approves six members for the Nominating Committee. Mr. Travis’s subsequent motion at this meeting to extend the deadline fails for lack of a second.

Nominating Committee Actions and Rationale

• The Committee considered all eight applications submitted, including the four received after the initial deadline.

• The Committee scheduled and conducted interviews with all eight applicants.

• During interviews, applicants were asked questions including whether they had ever filed a lawsuit against the Association, were considering filing a lawsuit, or had any compliance violations.

• The Committee ultimately nominated four candidates to be placed on the ballot for the election. Of these four, two had applied by the September 29 deadline and two had applied after.

Association’s Position and Testimony

• Simone McGinnis, the Association’s on-site manager, testified that the September 29 deadline was not imposed by the Board but was an administrative deadline set by the management company to allow time for the nomination and ballot-printing process.

• The Association’s position, articulated at the November 16, 2017 Board meeting, is that the only way to get on the ballot is to be nominated by the Nominating Committee, although write-in candidates are permitted during the election.

• The Board acknowledged that it had only strictly adhered to the Bylaw requirement of using a Nominating Committee for the past two years, after thirty years of non-adherence.

• The Board’s attorney stated that the Committee members have a duty to act reasonably and that any member who disagrees with the Committee’s discretionary choices should seek to amend the bylaws.

Analysis of Governing Documents and Statutes

The judge’s decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state law.

Document/Statute

Relevant Provision

Application in this Case

Bylaws Article IV, Section 3

“Nominations for election to the Board of Directors shall be made by a Nominating Committee… The Nominating Committee shall make as many nominations… as it shall in its discretion determine…”

This article grants the Committee explicit discretion to select nominees. It does not provide for “self-nomination” or require the Committee to nominate all applicants.

Bylaws Article VIII

“no committee may take action which exceeds its responsibilities. Each committee shall operate in accordance with any terms, limitations, or rules adopted by the Board.”

Mr. Travis argued the deadline was a “rule adopted by the Board.” The court found no evidence to support this, concluding it was an administrative deadline.

Bylaws Article IV, Section 1

States that Board Directors must be members of the Association. It lists no other qualifications.

Mr. Travis argued that questioning candidates imposed extra qualifications. The court found this was part of the Committee’s discretionary selection process, not the imposition of new formal requirements.

ARIZ. REV. STAT. § 33-1812

Prohibits proxy voting and requires that ballots set forth each proposed action and provide an opportunity to vote for or against it.

The court determined this statute applies to “votes allocated to a unit” (i.e., the member’s vote) and not the nomination process itself, which is governed by the Bylaws.

Conclusions of Law and Final Order

The Administrative Law Judge made the following conclusions based on a preponderance of the evidence:

1. Deadline was Administrative: There was no substantial evidence showing the September 29, 2017 deadline was a formal rule adopted by the Board. Therefore, the Nominating Committee did not violate Bylaws Article VIII by accepting applications after this date.

2. Committee Acted Within its Discretion: The plain language of Bylaws Article IV, Section 3 requires nominations to be made by the Committee and grants it discretion. The concept of “self-nomination” is not supported by the Bylaws. It was not unreasonable for the Committee to question applicants as part of exercising its explicit discretion to select nominees.

3. State Voting Statute Not Applicable: The nomination process, as dictated by the Bylaws, is separate from the act of voting. Since ARIZ. REV. STAT. § 33-1812 governs “votes allocated to a unit,” it is not applicable to the Committee’s function of selecting nominees.

IT IS ORDERED that Petitioner William Travis’s petition is dismissed.

The decision is binding on the parties unless a rehearing is requested from the Commissioner of the Department of Real Estate within 30 days of the service of the order.


William Travis vs. The Val Vista Lakes Community Association

Posted on by

Case Summary

Case ID 18F-H1817017-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-02-02
Administrative Law Judge Thomas Shedden
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William Travis Counsel —
Respondent The Val Vista Lakes Community Association Counsel Mark K. Sahl, Esq.

Alleged Violations

Bylaws Article VIII
Bylaws Article VIII; Bylaws Article IV, Section 1
ARIZ. REV. STAT. sections 33-1812(A), (A)(1), and (A)(2)

Outcome Summary

The Petitioner's petition, raising three issues concerning the HOA's election nominating process, was dismissed entirely. The Respondent was deemed the prevailing party.

Why this result: The Petitioner failed to meet the burden of proof on all issues. The ALJ found that the Nominating Committee acted within the authority granted by the Bylaws regarding deadlines and nominee selection discretion, and the relevant election statute (A.R.S. § 33-1812) was not applicable to the nomination process.

Key Issues & Findings

Nominating Committee disregarded a September 29, 2017 deadline by which parties were to submit applications to nominate themselves.

Petitioner alleged the Nominating Committee violated Article VIII by accepting applications after the September 29th administrative deadline, arguing the deadline was a 'term[], limitation[], or rule[] adopted by the Board of Directors'.

Orders: The claim was dismissed. The deadline was an administrative deadline set by management, not a rule adopted by the Board, and therefore the Committee did not violate Bylaws Article VIII by accepting applications late.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Bylaws Article VIII

The Nominating Committee exceeded its authority by asking candidates questions that had the effect of imposing qualification requirements for the Board’s Directors that exceed those set out in the Bylaws.

Petitioner alleged that the Committee imposing questions (such as whether an applicant had filed a lawsuit against the Association) created unauthorized qualifications for the Board, violating the Bylaws.

Orders: The claim was dismissed. Bylaws Article IV Section 3 grants the Nominating Committee discretion to determine the number of nominations, and it was not unreasonable for the Committee to question applicants while exercising this explicit discretion.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Bylaws Article VIII
  • Bylaws Article IV, Section 3

By failing to include on the election-ballot members who had submitted 'self-nominations,' the Committee violated election statutes.

Petitioner asserted that because members could not vote for the four applicants the Nominating Committee did not nominate, the Committee engaged in proxy voting, violating election requirements set forth in A.R.S. § 33-1812.

Orders: The claim was dismissed. Because Bylaws Article IV Section 3 requires nominations to be made by the Nominating Committee, nominations are not 'votes allocated to a unit' and ARIZ. REV. STAT. section 33-1812 is not applicable.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. sections 33-1812(A)
  • ARIZ. REV. STAT. sections 33-1812(A)(1)
  • ARIZ. REV. STAT. sections 33-1812(A)(2)

Analytics Highlights

Topics: HOA Election, Nominating Committee, Bylaws Enforcement, Director Qualifications, Administrative Deadline, Statutory Interpretation, Self-Nomination
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. REV. STAT. section 33-1812

Audio Overview

Decision Documents

18F-H1817017-REL Decision – 615818.pdf

Uploaded 2025-10-09T03:32:12 (125.4 KB)





Briefing Doc – 18F-H1817017-REL


Administrative Hearing Briefing: Travis v. The Val Vista Lakes Community Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817017-REL, concerning a petition filed by William Travis against The Val Vista Lakes Community Association. The core of the dispute revolves around the actions of the Association’s Nominating Committee during the process for the November 16, 2017 Board of Directors election.

Mr. Travis raised three primary allegations: 1) the Committee violated Association Bylaws by accepting candidate applications after a stated September 29, 2017 deadline; 2) the Committee exceeded its authority by interviewing candidates, thereby imposing qualification requirements beyond those stipulated in the Bylaws; and 3) the failure to include all applicants on the ballot constituted a violation of Arizona state statutes related to proxy voting.

The Administrative Law Judge, Thomas Shedden, dismissed Mr. Travis’s petition in its entirety. The decision found that Travis failed to prove the application deadline was a formal rule adopted by the Board, concluding it was an administrative deadline set by the management company. The Judge determined that the Committee’s actions, including interviewing applicants, were a reasonable exercise of the discretion explicitly granted to it by the Bylaws. Finally, the Judge ruled that the state statute cited by Travis applies to the casting of votes, not the internal nomination process, and was therefore inapplicable to the Committee’s actions. The Val Vista Lakes Community Association was deemed the prevailing party.

——————————————————————————–

Case Overview

Case Number

18F-H1817017-REL

Petitioner

William Travis

Respondent

The Val Vista Lakes Community Association

Hearing Date

January 26, 2018

Decision Date

February 2, 2018

Presiding Judge

Thomas Shedden, Administrative Law Judge

Testifying Parties

William Travis (on his own behalf); Simone McGinnis (Association’s on-site manager)

Petitioner’s Allegations

William Travis’s petition, as amended, centered on three specific issues concerning the Nominating Committee’s conduct for the November 16, 2017 Board election:

1. Violation of Application Deadline: The Committee disregarded a September 29, 2017 deadline for candidate applications. Travis contended that this deadline was a “term, limitation, or rule adopted by the Board,” and by accepting applications after this date, the Committee violated Bylaws Article VIII.

2. Exceeding Authority and Imposing Qualifications: The Committee exceeded its authority by interviewing and questioning applicants. Travis argued that this process had the effect of creating new qualification requirements for Board Directors, beyond the sole requirement of Association membership outlined in Bylaws Article IV. He asserted the Committee had no authority to ask any questions.

3. Statutory Violation of Voting Rights: By failing to place all members who submitted “self-nominations” on the official election ballot, the Committee violated ARIZ. REV. STAT. § 33-1812(A). Travis claimed this action was tantamount to proxy voting because it prevented members from voting for or against certain candidates.

Key Factual Findings

Election and Nomination Timeline

• August 17, 2017: The Board of Directors appoints Cheryl Peterson-McCoy as the Nominating Committee Chairperson.

• September 12, 2017: The Association’s management company emails residents, announcing three open Board positions and an application deadline of September 29, 2017, at 5:00 p.m.

• By September 29, 2017: Four applications are received. At this point, the members of the Nominating Committee (other than the Chairperson) have not yet been selected.

• After September 29, 2017: The Association accepts four additional applications, including one from Mr. Travis. No revised notice is sent to the membership about an extended deadline.

• October 5, 2017: Mr. Travis, then a Board member, makes an email motion to extend the application deadline to October 16, which is denied.

• October 19, 2017: The Board formally approves six members for the Nominating Committee. Mr. Travis’s subsequent motion at this meeting to extend the deadline fails for lack of a second.

Nominating Committee Actions and Rationale

• The Committee considered all eight applications submitted, including the four received after the initial deadline.

• The Committee scheduled and conducted interviews with all eight applicants.

• During interviews, applicants were asked questions including whether they had ever filed a lawsuit against the Association, were considering filing a lawsuit, or had any compliance violations.

• The Committee ultimately nominated four candidates to be placed on the ballot for the election. Of these four, two had applied by the September 29 deadline and two had applied after.

Association’s Position and Testimony

• Simone McGinnis, the Association’s on-site manager, testified that the September 29 deadline was not imposed by the Board but was an administrative deadline set by the management company to allow time for the nomination and ballot-printing process.

• The Association’s position, articulated at the November 16, 2017 Board meeting, is that the only way to get on the ballot is to be nominated by the Nominating Committee, although write-in candidates are permitted during the election.

• The Board acknowledged that it had only strictly adhered to the Bylaw requirement of using a Nominating Committee for the past two years, after thirty years of non-adherence.

• The Board’s attorney stated that the Committee members have a duty to act reasonably and that any member who disagrees with the Committee’s discretionary choices should seek to amend the bylaws.

Analysis of Governing Documents and Statutes

The judge’s decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state law.

Document/Statute

Relevant Provision

Application in this Case

Bylaws Article IV, Section 3

“Nominations for election to the Board of Directors shall be made by a Nominating Committee… The Nominating Committee shall make as many nominations… as it shall in its discretion determine…”

This article grants the Committee explicit discretion to select nominees. It does not provide for “self-nomination” or require the Committee to nominate all applicants.

Bylaws Article VIII

“no committee may take action which exceeds its responsibilities. Each committee shall operate in accordance with any terms, limitations, or rules adopted by the Board.”

Mr. Travis argued the deadline was a “rule adopted by the Board.” The court found no evidence to support this, concluding it was an administrative deadline.

Bylaws Article IV, Section 1

States that Board Directors must be members of the Association. It lists no other qualifications.

Mr. Travis argued that questioning candidates imposed extra qualifications. The court found this was part of the Committee’s discretionary selection process, not the imposition of new formal requirements.

ARIZ. REV. STAT. § 33-1812

Prohibits proxy voting and requires that ballots set forth each proposed action and provide an opportunity to vote for or against it.

The court determined this statute applies to “votes allocated to a unit” (i.e., the member’s vote) and not the nomination process itself, which is governed by the Bylaws.

Conclusions of Law and Final Order

The Administrative Law Judge made the following conclusions based on a preponderance of the evidence:

1. Deadline was Administrative: There was no substantial evidence showing the September 29, 2017 deadline was a formal rule adopted by the Board. Therefore, the Nominating Committee did not violate Bylaws Article VIII by accepting applications after this date.

2. Committee Acted Within its Discretion: The plain language of Bylaws Article IV, Section 3 requires nominations to be made by the Committee and grants it discretion. The concept of “self-nomination” is not supported by the Bylaws. It was not unreasonable for the Committee to question applicants as part of exercising its explicit discretion to select nominees.

3. State Voting Statute Not Applicable: The nomination process, as dictated by the Bylaws, is separate from the act of voting. Since ARIZ. REV. STAT. § 33-1812 governs “votes allocated to a unit,” it is not applicable to the Committee’s function of selecting nominees.

IT IS ORDERED that Petitioner William Travis’s petition is dismissed.

The decision is binding on the parties unless a rehearing is requested from the Commissioner of the Department of Real Estate within 30 days of the service of the order.