Case Summary
| Case ID | 19F-H1919046-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2019-05-30 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | loss |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Vicky Glover | Counsel | — |
|---|---|---|---|
| Respondent | Foothills Community Association | Counsel | B. Austin Baillio |
Alleged Violations
A.R.S. § 33-1804
Outcome Summary
The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.
Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.
Key Issues & Findings
Open Meetings and Member Right to Speak (DRC and Email Meetings)
Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.
Orders: Petitioner's petition is denied.
Filing fee: $500.00, Fee refunded: Yes
Disposition: respondent_win
- A.R.S. § 33-1804
- A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818
Analytics Highlights
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
- A.R.S. § 33-1804
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
19F-H1919046-REL Decision – 712028.pdf
Briefing Document: Glover v. Foothills Community Association (Case No. 19F-H1919046-REL)
Executive Summary
This document summarizes the Administrative Law Judge Decision in the case of Vicky Glover versus the Foothills Community Association (FCA), where the petitioner’s claims were denied. The petitioner alleged that the FCA’s Design Review Committee (DRC) violated Arizona’s open meeting laws (A.R.S. § 33-1804) on two fronts: first, by conducting unannounced “email meetings” to vote on non-emergency matters, and second, by preventing members from speaking at appropriate times during regularly scheduled DRC meetings.
The Administrative Law Judge (ALJ), Tammy L. Eigenheer, concluded that the petitioner failed to prove any statutory violation. The decision rested on a strict textual interpretation of A.R.S. § 33-1804. Regarding speaking rights, the ALJ determined that while members have a right to speak at an “appropriate time” in committee meetings, the more specific right to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings. The judge found it was reasonable for the DRC to rule that a member speaking on another member’s application was not an “appropriate time.”
Concerning the email communications, the ALJ ruled that they do not constitute “regularly scheduled committee meetings” as defined by the statute. Because the email discussions and decisions did not occur at a set weekly, monthly, or quarterly time, they are not subject to the open meeting requirements. The general state policy favoring open meetings was found to be subordinate to the specific statutory language. The petition was therefore denied in its entirety.
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Case Overview
This case involved a dispute between a homeowner and a homeowners association regarding the application of Arizona’s open meeting laws to a committee of the association.
Name / Entity
Representation / Title
Petitioner
Vicky Glover
Appeared on her own behalf
Respondent
Foothills Community Association (FCA)
B. Austin Baillio (Maxwell & Morgan, P.C.)
Adjudicator
Tammy L. Eigenheer
Administrative Law Judge
Jurisdiction
Office of Administrative Hearings
Phoenix, Arizona
Case Timeline
• December 13, 2018 & January 9, 2019: Petitioner attends and records DRC meetings where the alleged violations occurred.
• January 23, 2019: Vicky Glover files a petition with the Arizona Department of Real Estate.
• January 28, 2019: The Department issues a notice to the FCA regarding the petition.
• May 10, 2019: An administrative hearing is held.
• May 30, 2019: The Administrative Law Judge issues the final decision.
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Petitioner’s Allegations
The petitioner, Vicky Glover, alleged that the Foothills Community Association violated Arizona Revised Statutes (A.R.S.) § 33-1804 in two specific ways:
1. Improper Email Meetings: The FCA’s Design Review Committee (DRC) held unannounced meetings via email to vote on non-emergency matters, which should have been handled in open, public meetings.
2. Denial of Speaking Rights: The DRC refused to allow community members, including the petitioner, to speak at an appropriate time during its regularly scheduled meetings, specifically when she wished to speak on other members’ pending requests.
Key Factual Findings
The facts underlying the petition were not in dispute by the parties during the hearing. The key findings of fact established were:
• Organizational Structure:
◦ The FCA Board of Directors is comprised of seven members and meets on the fourth Wednesday of the month at 6:00 p.m.
◦ The Design Review Committee (DRC) is appointed by the Board, is comprised of five members (two of whom are also on the Board), and meets on the second Wednesday of the month at 2:00 p.m.
• Events at DRC Meetings:
◦ On December 13, 2018, and January 9, 2019, Vicky Glover attended and recorded DRC meetings.
◦ During these meetings, she was not permitted to speak on issues being discussed related to other members’ pending requests.
• Use of Email by the DRC:
◦ During meetings, DRC members mentioned that additional information for certain requests would be shared via email after the meeting.
◦ Based on this emailed information, DRC members would approve or deny the request.
◦ Decisions made via email between meetings were formally “ratified” at the subsequent DRC meeting.
◦ FCA Manager Pat Wontor testified, denying that the DRC took initial action via email, asserting instead that emails were only used to gather additional information on matters that had already been discussed in an open meeting.
• DRC Policies: A request submitted to the DRC is deemed approved if it is not denied within 60 days.
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Legal Analysis and Judge’s Conclusions
The Administrative Law Judge’s decision centered on a strict interpretation of the plain language of A.R.S. § 33-1804. The petitioner bore the burden of proving a violation by a preponderance of the evidence and failed to do so on both counts.
I. Member Speaking Rights at Committee Meetings
The judge analyzed the petitioner’s claim that she was wrongfully denied the right to speak at DRC meetings.
• Governing Statute: A.R.S. § 33-1804(A) states that at “any regularly scheduled committee meetings… all members… shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”
• ALJ’s Interpretation: The judge found a critical distinction within the statute’s text. A later clause specifies that “the board… shall permit a member… to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item.”
• Conclusion: The judge ruled that this specific right to speak on an item before a vote applies only to meetings of the Board of Directors, not to committee meetings. For committee meetings, the standard is the more general “appropriate time.” The ALJ concluded it was reasonable for the DRC to determine that having one member speak on another member’s private application was not an “appropriate time.” Therefore, the DRC’s refusal to allow the petitioner to speak did not violate the statute.
II. Email Deliberations and “Meetings”
The judge next addressed the claim that email communications constituted illegal, non-public meetings.
• Governing Statute: A.R.S. § 33-1804(A) mandates that open meeting rules apply to “regularly scheduled committee meetings.”
• ALJ’s Interpretation: The judge concluded that the email discussions, deliberations, and decisions among DRC members did not meet the definition of “regularly scheduled.” These communications did not occur at a set time on a recurring basis (e.g., weekly, monthly, quarterly). While they could be considered a form of meeting, they were not regularly scheduled ones.
• Effect of State Policy: The judge acknowledged the policy statement in A.R.S. § 33-1804(F), which expresses a legislative preference for open meetings. However, the judge ruled that this general policy “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.”
• Conclusion: Because the email communications were not regularly scheduled, they did not fall under the open meeting requirements of the statute, and no violation occurred.
Final Order and Implications
Based on the legal analysis, the Administrative Law Judge found that the petitioner did not establish any violation of A.R.S. § 33-1804.
• Final Order: “IT IS ORDERED that Petitioner’s petition is denied.”
• Next Steps: The decision is binding on the parties. A party may file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.
Study Guide: Glover v. Foothills Community Association (No. 19F-H1919046-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Vicky Glover (Petitioner) and the Foothills Community Association (Respondent). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined and used within the source document.
Quiz: Short-Answer Questions
Instructions: Answer the following questions based on the provided legal decision. Each answer should be two to three sentences long.
1. Who were the primary parties involved in this case and what were their respective roles?
2. What were the two specific violations of state statutes that the Petitioner alleged?
3. Describe the composition and meeting schedules of the Board of Directors and the Design Review Committee (DRC).
4. What specific action did the Petitioner take during the DRC meetings on December 13, 2018, and January 9, 2019?
5. According to the decision, what was the DRC’s practice regarding decisions made via email between meetings?
6. What is the standard of proof the Petitioner was required to meet, and how does the decision define it?
7. How did the Administrative Law Judge interpret the statutory phrase “an appropriate time” for a member to speak during a committee meeting?
8. Why did the Judge conclude that the DRC’s email communications did not violate the open meeting requirements of A.R.S. § 33-1804?
9. What was the final ruling, or Order, issued by the Administrative Law Judge in this case?
10. What recourse did the parties have if they disagreed with the Judge’s order?
Answer Key
1. The primary parties were Vicky Glover, the Petitioner who filed the complaint, and the Foothills Community Association (FCA), the Respondent homeowners association. The case was heard by Administrative Law Judge Tammy L. Eigenheer in the Office of Administrative Hearings.
2. The Petitioner alleged that the Respondent violated state statutes by holding unannounced email meetings to vote on non-emergency matters. She also alleged that the Respondent would not allow community members to speak at appropriate times during Design Review Committee (DRC) meetings.
3. The Board of Directors has seven members and meets at 6:00 p.m. on the fourth Wednesday of the month. The Design Review Committee (DRC) is appointed by the Board, has five members (two of whom are also on the Board), and meets at 2:00 p.m. on the second Wednesday of the month.
4. During the DRC meetings on December 13, 2018, and January 9, 2019, the Petitioner attended and recorded the proceedings. She was not allowed to speak on other members’ pending requests during these meetings.
5. The DRC would gather additional information via email after a meeting and members would then approve or deny the request via email. Any decisions made via email between DRC meetings were then “ratified” at the next formal DRC meeting.
6. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The decision defines this as evidence that is of greater weight or more convincing than the opposing evidence, showing the fact sought to be proved is more probable than not.
7. The Judge determined that the statute does not define what constitutes “an appropriate time” to speak at a committee meeting. Therefore, it was reasonable for the DRC to decide that the deliberation regarding a different member’s request was not an appropriate time for the Petitioner to speak.
8. The Judge concluded that email communications are not “regularly scheduled committee meetings” because they do not occur at a set time on a weekly, monthly, quarterly, or annual basis. Since A.R.S. § 33-1804 only requires regularly scheduled committee meetings to be open, the email discussions were not a violation.
9. The final Order was that the Petitioner’s petition is denied. The Administrative Law Judge concluded that the Petitioner did not establish any violation of A.R.S. § 33-1804.
10. Pursuant to A.R.S. §32-2199.02(B), the order is binding unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Essay Questions
Instructions: The following questions are designed for longer-form essay responses to encourage a deeper synthesis of the case details and legal reasoning. Answers are not provided.
1. Analyze the Administrative Law Judge’s statutory construction of A.R.S. § 33-1804. How does the judge distinguish between the open meeting requirements for Board of Directors meetings versus committee meetings, and what role does the “plain language” of the statute play in this interpretation?
2. Discuss the two central allegations made by Vicky Glover. For each allegation, detail the undisputed facts of the events and explain the specific legal reasoning the judge used to conclude that no statutory violation occurred.
3. Examine the conflict between the state’s declared policy in favor of open meetings (A.R.S. § 33-1804(F)) and the specific statutory language governing committee meetings (A.R.S. § 33-1804(A)). How did the judge resolve this apparent conflict in her final decision?
4. Based on the “Findings of Fact,” describe the operational procedures of the Design Review Committee, including its use of email for decision-making and subsequent ratification. How did these procedures become central to the legal dispute?
5. Explain the concept of “burden of proof” as it applied in this case. How did the standard of “preponderance of the evidence” shape the proceedings, and why was the Administrative Law Judge’s conclusion that the Petitioner “did not establish” a violation critical to the final order?
Glossary of Key Terms
Definition from Source Context
Administrative Law Judge
Tammy L. Eigenheer, the judge who presided over the hearing and issued the decision in this case.
A.R.S. § 33-1804
The Arizona Revised Statute that the Petitioner alleged was violated. It governs open meetings for planned communities, including member associations, boards of directors, and regularly scheduled committees.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed her petition and which has jurisdiction to hear disputes between property owners and condominium owners associations.
Board of Directors
The governing body of the Foothills Community Association, comprised of seven members. It appoints the Design Review Committee.
Design Review Committee (DRC)
A five-member committee appointed by the Board of Directors. Two of its members are also on the Board. The DRC’s meetings were the subject of the Petitioner’s complaint.
Foothills Community Association (FCA)
The Respondent in the case. An association of homeowners located in Phoenix, Arizona.
Petitioner
Vicky Glover, who filed a petition on January 23, 2019, with the Arizona Department of Real Estate against the Foothills Community Association.
Preponderance of the evidence
The burden of proof required of the Petitioner. 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.”
Ratified
The term used to describe the process where decisions made by the DRC via email between meetings were formally approved at the next DRC meeting.
Regularly scheduled committee meetings
The specific type of meeting subject to the open meeting requirements of A.R.S. § 33-1804. The Judge concluded that email communications do not meet this definition as they do not occur at a set time.
Respondent
The Foothills Community Association (FCA), against which the petition was filed. Represented in the hearing by B. Austin Baillio.
Statutory Construction
The process of interpreting a statute. The primary goal is to ascertain the legislature’s intent, first by looking at the plain text of the statute.
3 Shocking Loopholes in HOA ‘Open Meeting’ Laws This Homeowner Discovered the Hard Way
Introduction: The Illusion of Transparency
For anyone living in a homeowner’s association (HOA), there’s a fundamental expectation: the business of the community is conducted in the open. We assume that as members, we have a right to attend meetings, understand the decisions being made, and voice our opinions before our board takes action.
But a startling court decision from an Arizona Administrative Law Judge throws a wrench in that assumption. One homeowner’s legal challenge against her association didn’t just fail—it inadvertently created a roadmap for how HOAs can legally operate behind closed doors, affecting millions of residents in planned communities.
This article will break down the three most counter-intuitive takeaways from this legal battle, revealing how the specific wording of the law can create major gaps in transparency and challenge everything you thought you knew about your rights as a homeowner.
1. Your Right to Speak is Weaker Than You Think—Especially in Committee Meetings
Most homeowners believe they have a protected right to speak on any agenda item at any official HOA meeting. The case of petitioner Vicky Glover shows this is a dangerous assumption.
On December 13, 2018, and January 9, 2019, Ms. Glover attended meetings of her community’s Design Review Committee (DRC) and was not permitted to speak about other members’ pending architectural requests. She argued this violated Arizona’s open meeting law for planned communities (A.R.S. § 33-1804).
The Administrative Law Judge (ALJ), however, pointed out a critical distinction in the law’s text. The statute explicitly guarantees a member the right “to speak once after the board has discussed a specific agenda item but before the board takes formal action.” This specific right, the ALJ concluded, applies only to meetings of the Board of Directors.
For committee meetings, the law sets a much vaguer standard, requiring only that members “be permitted to attend and speak at an appropriate time.” The ALJ found it was reasonable for the DRC to decide that having Ms. Glover speak on another member’s application was not an “appropriate time.”
This is a crucial distinction because committees—like architectural, design, or finance committees—often make the decisions that most directly impact homeowners’ property and daily lives. Yet, this ruling clarifies that the guaranteed right to be heard before a vote is taken is significantly weaker in those very forums.
2. “Email Meetings” Can Be a Legal Way to Sidestep Open Meeting Rules
The common understanding of open meeting laws is that they exist to prevent boards and committees from deliberating and making decisions in private. But what if the meeting doesn’t happen in a room, but in an email chain?
Ms. Glover’s second claim was that the DRC was conducting business and making decisions via email between its official meetings. Evidence showed that after a meeting, additional information would be shared with committee members who could then “approve or deny the request… via email.” The association’s manager, Pat Wontor, denied this, claiming emails were only used to gather information on matters already discussed in a meeting.
The ALJ’s conclusion on this matter was stunning and sidestepped the conflicting testimony entirely. The Arizona open meeting law in question only applies to “regularly scheduled committee meetings.” Because email exchanges do not occur at a set, scheduled time—like the second Wednesday of the month—the judge ruled they do not fall under the open meeting requirements of the statute, regardless of their content.
The implication of this loophole is profound. It allows a committee to conduct significant deliberation and decision-making entirely outside of public view. This practice can turn the open meeting into a hollow formality. A committee can present a “done deal” for public ratification, rendering the member’s right to observe and speak effectively meaningless. The public meeting becomes a theatrical rubber stamp for a decision already made in secret.
3. The “Spirit of the Law” Doesn’t Beat the Letter of the Law
Many laws contain a policy statement that outlines their overarching goal—the “spirit of the law.” Arizona’s statute on HOA meetings has an exceptionally strong one, stating that all meetings should be open and that the law should be interpreted to favor transparency. The text explicitly declares:
“It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… and shall construe any provision of this section in favor of open meetings.” (from A.R.S. § 33-1804(F))
Ms. Glover and many homeowners would read this and assume it guarantees broad transparency. The ALJ, however, ruled that this powerful policy statement “does not override the specific provisions” of the law.
In other words, the literal, specific text—like the distinction between “board” and “committee” meetings, or the “regularly scheduled” requirement—takes precedence over the law’s general intent.
This is perhaps the most important lesson for all homeowners. Relying on the assumed purpose or “spirit” of a rule is not enough. In a legal dispute, the precise, technical wording is what matters most. It highlights the critical importance for homeowners to read and understand the exact text of state statutes and their own governing documents, because the loopholes are often found in the fine print.
Conclusion: Knowledge is Your Best Defense
While Vicky Glover lost her petition, her case provides an invaluable education for every member of a community association. It is a stark warning that transparency in an HOA is not a guaranteed principle but a legal standard with specific, and at times counter-intuitive, boundaries that can be exploited.
The loopholes her case exposed reveal a sobering reality: your right to speak is conditional, “meetings” can legally occur out of sight in an email chain, and the stated “spirit” of the law can be rendered toothless by its literal text. HOA governance is not guided by general principles of fairness, but by very specific legal language.
Given these loopholes, it’s worth asking: How many of the most important decisions in your community are happening in an inbox instead of the boardroom?
Case Participants
Petitioner Side
- Vicky Glover (petitioner)
Respondent Side
- B. Austin Baillio (respondent attorney)
Maxwell & Morgan, P.C. - Pat Wontor (manager)
Manager for DRC/Foothills Community Association
Neutral Parties
- Tammy L. Eigenheer (ALJ)
- Judy Lowe (Commissioner)
Arizona Department of Real Estate
Other Participants
- Del Sol (staff/clerk)
Transmitting staff
