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(A)
Outcome Summary
The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.
Key Issues & Findings
Whether the Respondent violated the open meeting statute by closing a committee meeting.
Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.
Orders: Petitioner’s petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 33-1804
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
- State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
- Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
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, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
- Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)
Video Overview
Audio Overview
Decision Documents
18F-H1817005-REL Decision – 605190.pdf
18F-H1817005-REL 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.
Study Guide: Moselle v. Desert Mountain Master Association (No. 18F-H1817005-REL-RHG)
This guide provides a detailed review of the Administrative Law Judge Decision in the case between Petitioner Gary W. Moselle and Respondent Desert Mountain Master Association. It includes a quiz with an answer key to test comprehension, essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Answer the following questions in 2-3 sentences based on the information provided in the case document.
1. Who were the primary parties involved in this case, and what were their roles?
2. What specific event and action by the Respondent prompted the Petitioner to file his initial petition?
3. What was the Respondent’s primary argument at the November 17, 2017, hearing for why the Communications committee was not subject to the open meetings law?
4. What was the initial outcome of the case following the first hearing, as decided on December 7, 2017?
5. On what grounds did the Petitioner successfully file for a rehearing of the case?
6. How did the Petitioner, Gary W. Moselle, interpret the statutory phrase “regularly scheduled committee meetings”?
7. How did the Respondent, DMMA, interpret the same phrase, “regularly scheduled committee meetings”?
8. According to the document, what is the primary goal when construing a statute, and what is the first step in that process?
9. What was the significance of the policy statement in A.R.S. § 33-1804(F) regarding open meetings, and how did the judge rule on its applicability?
10. What was the final order issued by the Administrative Law Judge on May 10, 2018, and what was its legal effect on the parties?
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Answer Key
1. The primary parties were Petitioner Gary W. Moselle, a homeowner, and Respondent Desert Mountain Master Association (DMMA), an association of homeowners in Scottsdale, Arizona. Mr. Moselle filed a petition against the DMMA.
2. The Petitioner filed his petition after the Chair of the DMMA’s Communications Committee alleged that a scheduled meeting was “closed” and not subject to Arizona’s open meeting statute. The Petitioner was subsequently not allowed to attend the closed committee meeting held on September 6, 2017.
3. The Respondent argued that the Communications committee did not meet regularly and was therefore not subject to the open meetings law. To support this, they presented testimony that the committee had only met four times in 2016 and 2017.
4. Following the first hearing, the Administrative Law Judge issued a decision on December 7, 2017, in which the Petitioner’s petition was denied.
5. The Petitioner requested a rehearing based on what he cited as newly discovered material evidence, specifically an email sent by the Respondent after the first hearing concluded. He also argued the initial decision was contrary to law and that the Respondent may have misled the judge.
6. The Petitioner argued that “regularly scheduled” should be interpreted to mean scheduled in a normal or ordinary fashion. He contended that because the September 6, 2017, meeting was scheduled in this manner, it should have been open.
7. The Respondent argued that the phrase “regularly scheduled” meant meetings that occurred at regular intervals, such as on a specific day each month, quarterly, or annually. They contended that since the Communications committee met infrequently and without an established interval, its meetings were not “regularly scheduled.”
8. The primary goal when construing a statute is to ascertain the legislature’s intent. The first step is to look at the text of the statute itself and ascribe its plain meaning if the language is clear.
9. The policy statement in A.R.S. § 33-1804(F) declares that it is the state’s policy for all meetings of a planned community to be conducted openly. The judge ruled that this general policy statement does not override the specific provision in A.R.S. § 33-1804(A) that only “regularly scheduled” committee meetings must be open.
10. The final order, issued on May 10, 2018, was that the Petitioner’s petition is denied. As this order was the result of a rehearing, it was binding on the parties, with any further appeal requiring judicial review in the superior court.
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Essay Questions
The following questions are designed for longer, more analytical responses. Answers are not provided.
1. Analyze the competing interpretations of “regularly scheduled” as presented by the Petitioner and Respondent. Discuss which argument the Administrative Law Judge found more compelling and explain the legal reasoning provided in the decision.
2. Discuss the role and significance of Arizona Revised Statute (A.R.S.) § 33-1804(F) in this case. Explain how the Petitioner used this section to support his argument and why the Administrative Law Judge concluded it did not override the specific language in A.R.S. § 33-1804(A).
3. Trace the procedural history of the case from the initial petition filing on September 1, 2017, to the final order on May 10, 2018. Include key dates, events (hearings, decisions, requests), and the outcomes at each stage.
4. Evaluate the evidence presented by the Respondent regarding the meeting frequency of the DMMA Communication committee. How did this evidence support the Respondent’s legal argument and influence the final decision?
5. Based on the “Conclusions of Law” section, explain the standard of proof required in this proceeding (preponderance of the evidence) and the principles of statutory construction the judge applied to interpret the relevant statute.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.
A.R.S. § 33-1804
The specific Arizona Revised Statute at the center of the legal dispute. It mandates that meetings of a members’ association, its board of directors, and any “regularly scheduled committee meetings” must be open to all members of the association.
Cross-examination
A phase during the hearing where a party or their representative questions a witness from the opposing side. Petitioner Moselle underwent cross-examination during the April 20, 2018, rehearing.
Department
The Arizona Department of Real Estate, the state agency with which the Petitioner filed his initial petition and which has jurisdiction to hear disputes between homeowners and condominium owners associations.
An abbreviation for Desert Mountain Master Association, the Respondent in the case and the homeowners association for a planned community in Scottsdale, Arizona.
Open Meetings Law
The legal requirement, as outlined in A.R.S. § 33-1804, that certain meetings of a homeowners association must be open to all members, who must be permitted to attend and speak.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the petitioner was homeowner Gary W. Moselle.
Preponderance of the Evidence
The burden of proof required in this proceeding. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Respondent
The party against whom a petition is filed. In this case, the respondent was the Desert Mountain Master Association (DMMA).
Statutory Construction
The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain legislative intent, first by looking at the plain language of the statute’s text.
Your HOA Can Legally Hold Secret Committee Meetings. Here’s How.
Most homeowners operate under a reasonable assumption: meetings that concern their community association should be open for them to attend. Transparency is a cornerstone of trust between residents and their HOA board. But what if some of those meetings, like committee meetings, could be held in private, entirely legally? The answer, revealed in a contentious Arizona case, lies in a two-word loophole that every homeowner should understand.
A legal case from Scottsdale, Arizona, Moselle vs. Desert Mountain Master Association, hinged on this very issue. It revealed a surprising and important nuance in the law, showing how specific wording can create exceptions to the general rule of open governance.
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1. The “Regularly Scheduled” Loophole That Allows for Closed Meetings
The central conflict of the case began when a homeowner, Gary Moselle, was barred from attending a Communications Committee meeting for his HOA, the Desert Mountain Master Association (DMMA). He filed a petition, arguing this action violated Arizona’s open meeting law for planned communities.
But the homeowner’s argument ran into a wall: the precise text of the law. The Administrative Law Judge’s ruling hinged on the wording of A.R.S. § 33-1804(A), which mandates openness for “any regularly scheduled committee meetings.” The judge found that the Communications Committee meeting was legally closed because it was not “regularly scheduled.”
Everything came down to the court’s interpretation of two words: “regularly scheduled.”
• The Homeowner’s Argument: Mr. Moselle contended that “regularly scheduled” simply meant “scheduled in a normal fashion.”
• The Court’s Conclusion: The HOA and the judge determined that the phrase means meetings that “occur at regular intervals,” such as monthly, quarterly, or annually.
The evidence supported the court’s conclusion. The DMMA Communications committee had only met four times in 2016 and 2017. This ad-hoc pattern was crucial evidence that the meetings were not “regularly scheduled” in the way the law required.
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2. Why a Law’s General Policy Doesn’t Always Overrule Its Specific Text
The petitioner argued that the law’s explicit policy statement, which strongly favors open meetings, should have been the guiding principle. He pointed to the text of A.R.S. § 33-1804(F):
It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly… and shall construe any provision of this section in favor of open meetings.
The judge’s conclusion illustrates a fundamental principle of legal interpretation: the specific almost always trumps the general. Despite the clear declaration of policy, the judge found that it did not override the more precise provision in the law. The general policy favoring open meetings could not change the fact that A.R.S. § 33-1804(A) explicitly limits the open meeting requirement to only “regularly scheduled” committee meetings.
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3. A Petitioner’s Own Words Undercut His Argument
The case took a surprising turn, however, when the petitioner himself handed the association its strongest piece of evidence. While trying to make a point about other committees within the DMMA, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”
This statement was a moment of legal irony that proved devastating to his case. The judge noted in the final decision that the petitioner’s own language aligned perfectly with the court’s ultimate interpretation. In a formal hearing, Mr. Moselle inadvertently defined the key term against his own interest, drawing a clear distinction between meetings called on an as-needed basis (“at the request of the chair”) and those that are “regularly scheduled.” This admission provided the exact plain-language interpretation the judge needed to resolve the ambiguity in the case at hand, significantly weakening the petitioner’s entire position.
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Conclusion: A Lesson in Legal Precision
The ultimate lesson from this case is that while homeowner transparency laws are powerful, their protections are defined by precise legal wording. Seemingly small details can have significant consequences. In this Arizona case, the distinction between ad-hoc meetings called as needed and those that occur at regular, predictable intervals was the deciding factor that allowed a committee meeting to be held behind closed doors.
This raises a critical question for homeowners and boards alike: Does this legal distinction provide necessary flexibility for informal committee work, or is it a loophole that ultimately undermines the spirit of open governance in our communities?
Case Participants
Petitioner Side
- Gary W. Moselle (petitioner)
Appeared on his own behalf; Chair of the Communications Committee
Respondent Side
- Curtis Ekmark (respondent attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP - Charles Markle (respondent attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
- Tammy L. Eigenheer (ALJ)
Administrative Law Judge - Judy Lowe (Commissioner)
Arizona Department of Real Estate
Other Participants
- Felicia Del Sol (staff)
Served order upon parties
