Borowsky Law Group, P.C.

A Scottsdale, Arizona Civil Litigation Firm

THE OPEN MEETING LAWS and HOMEOWNER ASSOCIATIONS

1.             I have heard that Arizona's broad Open Meeting Law applies to HOA meetings.  Is this true?
 No.  The Arizona Open Meeting Laws in A.R.S. §§ 38-431 through 431.09 require that any meeting of any public body must be open to all interested persons, including the public-at-large.  However, the AZ Attorney General's office has consistently opined for decades that HOA's are not “public bodies” in the context of the Open Meeting laws.  Thus, A.R.S. §33-1804 and the  open meeting law for Condominiums are the only state statutes or regulations that specifically govern the open meetings of associations.

 2.             Is there any difference between the open meeting laws for Planned Community HOAs and Condominium associations?
 No.  The meeting laws in A.R.S. §33-1804 (planned unit associations) and §33-1248 (condominium associations) are identical in all substantive respects.

 3.           Are committee meetings subject to the open meeting law?
 There is a sincere difference of opinions among legal practitioners on this issue.  Some say that the statute only addresses instances when members can speak before the board makes decisions, and thus the statute is limited to only those meetings when the board is present.  Other attorneys would argue that a committee “meeting” is still a gathering to discuss association business regardless of whether final decisions are made .  No case law precedent has been set in the Courts regarding this issue. 
 
 4.           Would the open meeting law apply to 'work sessions' or casual meetings where the board is meeting but does not intend to make any final decisions?
 It is the consensus among legal practitioners that the open meeting law applies to informal, casual, or work sessions if the attendees comprise a board quorum.

 55.           Do open meeting laws apply to other forms of discussion, deliberation, and information sharing such as real-time texting, online chatting, or cell phone conferences?
 Yes, for certain types of real-time communication.  Since the day the open meeting law was introduced in 1994, a number of new and powerful forms of communication have become ubiquitous.  While these new forms of communication are important tools that can improve association administration and communication, it is quite possible that the open meeting laws would apply to these communication forms, otherwise an unscrupulous board could simply circumvent open meeting laws by conducting the majority of their business in real time in covert texting or online chats.

E-mails are not a meeting under the current version of the open meeting laws, the condominium act and the planned community statutes.  Currently, e-mails are just another form of non real-time communication. 

However, best practices dictate that board members should be very careful when "replying to all" in any email communication, as it is possible that a "quorom" could technically be formed for deliberations by the exchange of multiple emails between a quorom of board members. 


Document
Course Handout - HOA Open Meetings
Document
Attorney General Opinion (1997) - HOAs and Open Meeting Laws
Document
Attorney General Bulletin (2006) - HOA Open Meeting Law
BASIC FEATURES OF THE HOA OPEN MEETING LAW

I. GENERAL TRANSPARENCY
A. All meetings of the association and/or the board are open to all members or their designated representatives.
B. Provisions in CCRs or other governing documents cannot override the minimum transparency and openness requirements in the Open Meeting Law.
II.  A REASONABLE OPPORTUNITY TO SPEAK
A. The Board must allow any “desiring member or designated representative” the opportunity to attend and speak before the board takes any formal action on any item under discussion.  
1. The board may place reasonable time limits per speaker.
2. The board must provide the opportunity for opposing sides to speak.
III. CLOSING THE DOORS
A.         The board may retreat into executive session (“closed meeting”) for any of the following purposes: 
- LEGAL: To hear, or to further consider, the advice of legal counsel;
- LAWSUITS: To discuss pending or potential litigation.  This would include discussions regarding legal action to collect assessments; to enforce the CCRs; to preserve the CCRs against a homeowner's lawsuit; third-party legal action (such as with contractors or insurance companies); and administrative actions; 
- PERSONAL:  Personal, health, or finance issues with respect to any individual member; and 
- EMPLOYMENT: The performance, health, compensation, or complaints directed against any individual working for the association or working under the direction of the association. 
IV. TIME, MANNER AND PLACE
A.  Association meetings must take place at least once per calendar year.
B.  Meetings may be called by: (1) the President; or (2) Board Majority; or (3) 25% of the voting members (or less, if specified in the CCRs or bylaws).
C.  The association must give at least ten, and no more than fifty, days notice of any general association meeting to all members via hand-delivery or US mail.  Only forty-eight hours notice, via newsletter or 'conspicuous posting' or other reasonable notice method, is necessary for meetings of the Board of Directors.
D. Any meeting notice must include the date, time and place of meeting, and if the meeting is a “special meeting” the purpose of the meeting must be stated.
 
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As legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of competent counsel. The materials on this website do not constitute legal advice, do not necessarily reflect the opinions of the Borowsky Law Group or any of its attorneys or clients. 

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