Case Summary
| Case ID | 21F-H2120001-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-03-17 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | partial |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Debra K. Morin | Counsel | — |
|---|---|---|---|
| Respondent | Solera Chandler Homeowners' Association, Inc. | Counsel | Lydia A. Peirce Linsmeier |
Alleged Violations
A.R.S. 33-1804
Outcome Summary
The petition was affirmed in part (Complaint #1) and denied in part (Complaint #2). The Respondent HOA was found to have improperly conducted non-privileged business via email/unanimous written consent in violation of A.R.S. § 33-1804. The HOA was ordered to reimburse the $500 filing fee and comply with the statute, but no civil penalty was imposed.
Why this result: Petitioner failed to establish by a preponderance of the evidence the alleged violation concerning the improper use of emergency executive sessions (Complaint #2).
Key Issues & Findings
Non-privileged Association Business Conducted in Closed Session
The HOA improperly conducted association business, which should have been open to members, through unanimous written consent solicited via individual emails during the COVID-19 shutdown, violating the open meeting requirements of A.R.S. § 33-1804.
Orders: Respondent was ordered to comply with the requirements of A.R.S. § 33-1804 going forward and to reimburse Petitioner her $500.00 filing fee for the issue on which she prevailed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- A.R.S. 33-1804
- A.R.S. 10-3821
Analytics Highlights
- A.R.S. 33-1804
- A.R.S. 10-3821
- A.R.S. 32-2199 et seq.
- A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
21F-H2120001-REL Decision – 838004.pdf
Administrative Law Decision Briefing: Morin vs. Solera Chandler Homeowners’ Association
Executive Summary
This briefing synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin, and the Solera Chandler Homeowners’ Association, Inc. (HOA). The central issue was whether the HOA Board of Directors violated Arizona’s open meeting law (A.R.S. § 33-1804) by conducting association business and making decisions without open meetings accessible to its members.
The Administrative Law Judge (ALJ) ultimately ruled in favor of the petitioner on her primary complaint. The investigation and subsequent hearings revealed that the HOA Board, citing the challenges of the COVID-19 pandemic, utilized a process of “unanimous written consent” to approve numerous actions. This process, facilitated through individual emails to board members, was found to be an improper substitute for the open meetings required by law. The ALJ concluded that the specific transparency requirements for homeowners’ associations in A.R.S. § 33-1804 supersede the more general provisions for non-profit corporations in A.R.S. § 10-3821, which the HOA had cited as justification.
While the violation was established, no civil penalty was assessed due to the “unprecedented global pandemic.” The HOA was ordered to comply with the open meeting law moving forward and to reimburse the petitioner’s $500 filing fee. A second complaint from the petitioner, alleging the improper use of emergency executive sessions, was not proven and was therefore denied. A rehearing clarified the precise method of the violation—email voting rather than conference calls—but did not alter the final judgment.
Case Background and Allegations
This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed on July 10, 2020. The case centered on the actions of the Solera Chandler HOA’s Board of Directors between March and August 2020.
• Petitioner: Debra K. Morin
• Respondent: Solera Chandler Homeowners’ Association, Inc.
• Case Number: 21F-H2120001-REL
• Key Dates:
◦ Initial Hearing: October 29, 2020
◦ Initial Decision: November 18, 2020
◦ Rehearing: February 25, 2021
◦ Final Decision After Rehearing: March 17, 2021
Petitioner’s Formal Complaints
After being ordered to clarify her initial filing, the petitioner proceeded with two specific alleged violations of A.R.S. § 33-1804:
1. Complaint #1: Non-Privileged Business in Closed Sessions: The petitioner alleged that the HOA Board conducted non-privileged association business in closed sessions by using unanimous written consent. This practice circumvented statutory requirements for providing members with agendas, giving 48-hour notice, and allowing them an opportunity to speak on key issues before the Board took action.
2. Complaint #2: Improper Emergency Executive Sessions: The petitioner alleged that the HOA Board conducted privileged business under the guise of “emergency executive sessions.” This was done without properly identifying the legal exception to the open meeting law, providing an agenda or 48-hour notice, or submitting minutes at the next board meeting that stated the reason for the emergency.
Key Evidence and Factual Findings
The evidence presented centered on the HOA’s governance practices during the initial months of the COVID-19 pandemic.
Respondent’s Justification
The HOA’s defense rested on two main arguments:
• The COVID-19 pandemic made it impossible for the Board to meet in person, necessitating alternative methods to conduct business while protecting the health of directors and members.
• The use of unanimous written consents was authorized under A.R.S. § 10-3821, a statute that permits non-profit corporations to take action without a formal meeting if all directors consent in writing. The HOA acknowledged it had not used this method before the pandemic and did not intend to continue its use.
Unanimous Written Consents
At an open Board of Directors meeting on August 5, 2020, the Board formally ratified a series of actions taken via unanimous written consent during the “Covid 19 Shutdown.” A rehearing clarified the precise mechanism: a community management company would email each board member individually to solicit a “yes” or “no” vote on a proposal. If all votes were “yes,” the Board President would sign the written consent on behalf of the Board.
The actions taken through this process included:
Action Taken by Unanimous Written Consent
March 30, 2020
Approve repair and replacement of the sidewalk and community center entrance.
March 30, 2020
Approve repair and replacement of cool decking surrounding both pools.
April 30, 2020
Approve Kirk Sandquist as a member of the Architectural Review Committee.
April 30, 2020
Approve Tom Dusbabek as a member of the Architectural Review Committee.
May 5, 2020
Approve the Gilbert Road retention basin project, related irrigation replacement, and the addition of 420 tons of granite.
May 8, 2020
Approve replacement of a Carrier 6-ton heat pump.
May 8, 2020
Approve replacement of two Carrier 5-ton heat pumps.
May 27, 2020
Approve hiring Ken Eller to draft architectural drawings.
June 4, 2020
Approve a change to the Design Guidelines at the request of the Architectural Review Committee.
July 1, 2020
Approve the 2020 summer hardwood pruning and removal of trees.
Executive Sessions
The Board held numerous executive (closed) sessions during this period, including on March 13, March 16, March 19, March 24, April 6, April 10, May 4, May 15, May 27, June 24, and August 5, 2020. An “emergency executive session” was held on May 12, 2020. The agendas for these meetings cited specific legal exceptions under A.R.S. § 33-1804(A) as justification for the closure.
Legal Analysis and Rulings
The Administrative Law Judge’s decision hinged on the interpretation and primacy of two competing Arizona statutes.
The Core Statutory Conflict
• A.R.S. § 33-1804 (HOA Open Meeting Law): This statute establishes a strong state policy that all HOA board and member meetings “be conducted openly.” It mandates that members receive at least 48-hours’ notice, be provided with agendas, and be permitted to “attend and speak at an appropriate time.” The statute explicitly directs that any interpretation of its provisions must be construed “in favor of open meetings.”
• A.R.S. § 10-3821 (Action Without Meeting for Non-Profits): This statute, which applies more broadly to non-profit corporations, allows a board of directors to take action without a meeting if the action is approved by one or more written consents signed by all directors.
Ruling on Complaint #1 (Violation Established)
The ALJ concluded that the petitioner had proven by a preponderance of the evidence that the HOA violated the open meeting law. The core of the ruling is that the specific requirements of A.R.S. § 33-1804 for homeowners’ associations must be followed, even if A.R.S. § 10-3821 provides a different mechanism for general non-profits.
The final decision states: “Respondent improperly conducted association business in closed sessions via email rather than in meetings open to the members.” The use of email voting to achieve unanimous consent was deemed a violation because it denied members the notice, agenda, and opportunity to speak that are guaranteed by the HOA open meeting law.
However, the ALJ gave “consideration to the fact that Respondent was faced with an unprecedented global pandemic” and found that “no civil penalty is appropriate given the circumstances.”
Ruling on Complaint #2 (Violation Not Established)
The ALJ found that the petitioner failed to prove by a preponderance of the evidence that the Board conducted improper emergency executive sessions. The decision notes that there was “nothing in the record” to suggest the Board discussed topics outside the legally permitted exceptions for closed sessions, nor was there evidence to suggest the May 12, 2020, meeting was not a genuine emergency.
Final Order and Disposition
The final judgment, issued after the rehearing, is binding on both parties.
• Outcome: The petitioner’s petition was affirmed in part (regarding Complaint #1) and denied in part (regarding Complaint #2).
• Directives to Respondent (HOA):
1. The HOA is ordered to reimburse the petitioner’s $500.00 filing fee.
2. The HOA is directed to comply with the requirements of A.R.S. § 33-1804 going forward.
• Appeal: Any appeal of the final order must be filed for judicial review with the superior court within 35 days from the date of service.
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a detailed review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in Administrative Law Judge Decisions No. 21F-H2120001-REL and No. 21F-H2120001-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, legal arguments, and outcomes.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based only on the information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What was the central accusation in the Petitioner’s first complaint against the Respondent?
3. What two primary justifications did the Respondent provide for its actions during the COVID-19 pandemic?
4. According to the findings of the rehearing, what specific procedure did the Respondent use to obtain “unanimous written consents”?
5. Identify the two main Arizona Revised Statutes (A.R.S.) that were central to the legal dispute and briefly describe the function of each.
6. What was the final ruling on Complaint #1, and what was the judge’s reasoning?
7. Why did the Petitioner fail to prove the allegations in Complaint #2?
8. What specific factual error in the first Administrative Law Judge Decision prompted the Respondent to request a rehearing?
9. What two orders were issued against the Respondent in the final decision?
10. What specific circumstance did the Administrative Law Judge cite as a reason for not imposing a civil penalty on the Respondent?
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Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and homeowner, and the Solera Chandler Homeowners’ Association, Inc., the Respondent. The Petitioner filed a petition with the Arizona Department of Real Estate alleging the Respondent violated state law, while the Respondent defended its actions before an Administrative Law Judge.
2. The Petitioner’s first complaint accused the Solera Homeowners’ Association Board of Directors of conducting non-privileged association business in closed sessions. Specifically, she alleged they used unanimous written consent to take action without providing agendas, giving 48-hour notice, or allowing members an opportunity to speak on key issues.
3. The Respondent argued that the COVID-19 pandemic prevented the Board of Directors from meeting in person to protect the health of members and directors. The Respondent also asserted that its use of unanimous written consents was legally authorized for non-profit corporations under A.R.S. § 10-3821.
4. The rehearing established that an individual from the community management company would email each Board member individually to request a “yes” or “no” vote on a proposal. If all members replied “yes,” the item was considered passed by unanimous consent, and the Board President would sign the formal consent document.
5. The central statutes were A.R.S. § 33-1804 and A.R.S. § 10-3821. A.R.S. § 33-1804 is the state’s open meeting law for homeowners’ associations, requiring meetings to be open to members with proper notice, while A.R.S. § 10-3821 allows the board of a non-profit corporation to take action without a meeting if all directors provide written consent.
6. The judge ruled in favor of the Petitioner on Complaint #1, affirming the violation. The judge reasoned that while A.R.S. § 10-3821 allows for action without a meeting, the more specific requirements of A.R.S. § 33-1804 mandate that all HOA board meetings be open to members, a requirement the Respondent violated by conducting business via email.
7. The Petitioner failed to prove Complaint #2 because she did not establish by a preponderance of the evidence that the Respondent’s executive sessions were improper. The judge found nothing in the record to suggest the Board discussed issues outside the legal exceptions listed in A.R.S. § 33-1804(A) or that the May 12, 2020, session was not a genuine emergency.
8. The Respondent requested a rehearing to correct a finding in Conclusion of Law 8 of the initial decision, which incorrectly stated that the association business at issue was conducted in closed sessions via “conference calls.” The Respondent acknowledged using conference calls for executive sessions but denied using them for the actions taken by unanimous written consent.
9. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee for the issue on which she prevailed. Additionally, the Respondent was directed to comply with all requirements of A.R.S. § 33-1804 in the future.
10. The Administrative Law Judge gave consideration to the fact that the Respondent was “faced with an unprecedented global pandemic while balancing the need to comply with the applicable statutes and conduct association business.” Because of these unique circumstances, the judge found that no civil penalty was appropriate.
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Suggested Essay Questions
1. Discuss the conflict between A.R.S. § 33-1804 and A.R.S. § 10-3821 as it relates to the actions of the Solera Chandler Homeowners’ Association. How did the Administrative Law Judge resolve this conflict, and what does this imply about the hierarchy of state laws governing specific entities versus general corporations?
2. Analyze the Respondent’s argument that the COVID-19 pandemic justified their actions. To what extent did the Administrative Law Judge accept this argument, and how did it influence the final order?
3. Explain the legal standard of “preponderance of the evidence” and detail how it was applied to both Complaint #1 and Complaint #2. Why did the Petitioner meet this burden for the first complaint but not the second?
4. Trace the evolution of the case from the initial hearing to the rehearing. What specific finding of fact was corrected, and why was this correction significant for the legal record, even though it did not change the ultimate outcome for either complaint?
5. Based on the text of A.R.S. § 33-1804(F), discuss the stated policy of the state of Arizona regarding homeowner association meetings. How did the Respondent’s actions, specifically the use of email for unanimous consents, contravene this policy?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Tammy L. Eigenheer served as the ALJ.
A.R.S. § 10-3821
An Arizona Revised Statute that allows the board of directors of a non-profit corporation to take action without a formal meeting, provided the action is taken by all directors and evidenced by one or more written consents.
A.R.S. § 33-1804
An Arizona Revised Statute, also known as the open meeting law for planned communities, which mandates that all meetings of an HOA board of directors must be open to all members. It requires 48-hour notice and allows for closed “executive sessions” only for specific, limited purposes.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving her claims.
Executive Session
A portion of a meeting that is closed to association members. Under A.R.S. § 33-1804(A), executive sessions are only permitted for specific reasons, such as receiving legal advice, discussing pending litigation, or addressing confidential personal or financial information.
Open Meeting
A meeting of an HOA’s board of directors that, according to A.R.S. § 33-1804, must be open to all members of the association, who must be permitted to attend and speak.
Petitioner
The party who initiates a legal action or petition. In this case, the Petitioner was homeowner Debra K. Morin.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is of greater weight or more convincing than opposing evidence, showing that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing of a case to re-examine specific issues or correct errors from an initial decision. A rehearing was granted in this case to clarify how the unanimous written consents were executed.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Solera Chandler Homeowners’ Association, Inc.
Statutory Construction
The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain the legislature’s intent, first by looking at the statute’s plain language.
Unanimous Written Consent
A procedure, authorized by A.R.S. § 10-3821, where a board takes action without a meeting through written consents signed by all directors. The HOA used this method via individual emails to approve business, which was found to be a violation of HOA open meeting laws.
She Sued Her HOA Over Secret Pandemic Votes—And Won. Here’s What Every Homeowner Needs to Know.
Introduction: The Closed Doors of Your HOA
For many homeowners, it can feel like their Homeowners’ Association (HOA) board makes its most important decisions behind closed doors. You see the results—a new rule, a major repair project, a change in vendors—but the discussion and the vote happen out of sight. While the COVID-19 pandemic forced many organizations to find new ways to operate, for one Arizona HOA, their adaptation to remote work crossed a legal line, sparking a legal challenge from a resident.
The central conflict was straightforward: a homeowner, Debra K. Morin, filed a petition against the Solera Chandler Homeowners’ Association. She alleged they were making official decisions in secret through email, violating state law that guarantees homeowners the right to open meetings. While not all of her claims were affirmed, her primary complaint—that the board was conducting business in secret—led to a landmark decision for homeowner rights. The outcome of her case reveals several surprising and crucial lessons for every person living in an HOA community.
Takeaway 1: An HOA’s Open Meeting Law Trumps General Non-Profit Rules
1. Even a Pandemic Doesn’t Suspend a Homeowner’s Right to an Open Meeting
The Solera Chandler HOA board believed it was acting within the law. They argued that because they were a non-profit corporation, they could make decisions using “unanimous written consents” without a formal meeting. This practice is allowed for many non-profits under a general Arizona statute (A.R.S. § 10-3821). During the pandemic, this seemed like a practical way to conduct business without meeting in person.
However, the Administrative Law Judge ruled against the HOA. The judge’s key finding was that a more specific law takes precedence. The statute governing planned communities, A.R.S. § 33-1804, explicitly requires that all meetings of the board must be open to all members of the association. This is a critical legal lesson: when a specific law exists to govern a specific entity (like the Open Meeting Law for HOAs), it almost always overrides a more general law (like the one for all non-profits).
While the judge acknowledged the challenges of the “unprecedented global pandemic,” this did not excuse the violation, though it was cited as a reason not to issue a civil penalty.
Takeaway 2: “Meeting” by Email Is Still a Secret Meeting
2. A String of Individual Emails Can Constitute an Illegal Meeting
In the initial ruling, the judge found the board conducted business improperly, believing it was done via conference calls. Seizing on this factual error, the HOA challenged the decision and requested a rehearing, arguing their method was different and therefore permissible. In the rehearing, they clarified their actual process: the community management company would email each board member individually to request a ‘yes’ or ‘no’ vote. The HOA argued that because there was no simultaneous group discussion, this process wasn’t technically a “meeting.”
The challenge backfired. The judge’s final decision made it clear that this distinction didn’t matter. Whether by conference call or a series of individual emails, the result was the same: an illegal secret meeting. The method effectively prevented homeowners from observing the board’s process and speaking on agenda items before a vote was taken, as required by law. The HOA won their technical correction but lost the war, as the judge affirmed that the principle of transparency is more important than the specific technology used to circumvent it.
These weren’t minor housekeeping issues. The board was making substantial financial and operational decisions entirely out of public view, including:
• Repair and replacement of the sidewalk and community center entrance.
• Repair and replacement of the cool decking around both pools.
• Appointing new members to the Architectural Review Committee.
• Approving a retention basin project and the purchase of 420 tons of granite.
• Approving the 2020 summer hardwood pruning and removal of trees.
Takeaway 3: The Law Is Built to Favor Transparency
3. The Law Itself Has a Built-in Bias for Openness
The judge’s decision wasn’t just a narrow interpretation; it was guided by a powerful policy statement built directly into the Arizona statute for planned communities. The law itself tells judges, board members, and community managers exactly how it should be interpreted.
The text of A.R.S. § 33-1804(F) leaves no room for doubt:
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 that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions…shall construe any provision of this section in favor of open meetings.
This is a critical point. The law explicitly directs anyone interpreting it—including an HOA board—to resolve any ambiguity in favor of transparency and homeowner access. The default position is openness.
Takeaway 4: A Single Homeowner Can Force a Change
4. One Determined Homeowner Can Win
This case serves as an empowering lesson for homeowners who feel their board is operating in the shadows. Morin’s persistence paid off, proving that a single homeowner can successfully force a board to follow the law.
Her victory was clear and decisive. The court orders resulted in three key outcomes:
• The judge affirmed her petition, officially recognizing that the HOA had violated the law.
• The HOA was formally ordered to comply with the open meeting requirements of A.R.S. § 33-1804 going forward.
• The HOA was ordered to reimburse Ms. Morin her $500.00 filing fee.
This outcome demonstrates that the system can work. An individual homeowner with a valid complaint can navigate the process and achieve a binding legal victory that forces their HOA board to operate correctly.
Conclusion: Is Your Board Operating in the Open?
The lesson from the Solera Chandler HOA case is simple: transparency in HOA governance is not optional. It is a legal requirement designed to protect the rights of every homeowner to observe and participate in the governance of their community. The convenience of an email vote cannot replace the legal mandate for an open meeting.
Don’t assume your board is operating correctly. Review your meeting minutes. Ask questions about decisions that seem to appear without public discussion. Remember, the law explicitly favors openness, and as Debra Morin proved, it’s an enforceable right.
This case was about secret votes via email, but it highlights a larger principle of transparency. Does your HOA board make it easy for you to know what is being decided and to have your voice heard?
Case Participants
Petitioner Side
- Debra K. Morin (petitioner)
Respondent Side
- Lydia A. Peirce Linsmeier (HOA attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Also cited as Lydia Linsmeier - Joshua M. Bolen (HOA attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP - Gail Ryan (board member)
Solera Chandler Homeowners' Association, Inc.
President of Board, resigned August 5, 2020 - Kirk Sandquist (ARC member)
Solera Chandler Homeowners' Association, Inc.
Appointment approved April 30, 2020 - Tom Dusbabek (ARC member)
Solera Chandler Homeowners' Association, Inc.
Appointment approved April 30, 2020 - Ken Eller (contractor)
Approved to be hired to draft architectural drawings
Neutral Parties
- Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate
Granted Request for Rehearing - f. del sol (Admin staff)
Transmitted decisions
