Case Summary
| Case ID | 21F-H2121062-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-09-21 |
| Administrative Law Judge | Thomas Shedden |
| Outcome | 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. |
| 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
- 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
- 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)
Video Overview
Audio Overview
Decision Documents
21F-H2121062-REL Decision – 912276.pdf
This summary details the Administrative Law Judge (ALJ) Decision in the case of Ronald Borruso, Petitioner, vs. Sunland Village East Association, Respondent (No. 21F-H2121062-REL), heard on September 3, 2021. The Petitioner, Ronald Borruso, alleged that the Association violated its Bylaws and specific provisions of ARIZ. REV. STAT. section 33-1804.
Key Facts and Legal Standard
The Department of Real Estate had jurisdiction over the matter. The Petitioner bore the burden of proving the alleged violations occurred by a preponderance of the evidence. Borruso refined his allegations to two main issues, both centering on the violation of association meeting requirements under ARIZ. REV. STAT. § 33-1804(A) and (C).
Main Issues and Arguments
Issue 1: Member Participation at the May 27, 2021 Special Meeting
- Petitioner's Claim: Borruso alleged that during a special meeting concerning a recall petition, the Board denied members the right to speak at an appropriate time during proceedings, violating § 33-1804(A). He argued the meeting was improperly divided into a "closed" session where members could not offer substantive comments, followed by an "Open Session Q & A" after adjournment.
- Association's Argument: The Association maintained there was only one meeting, and it was not a violation to restrict members’ comments until after the Board provided its statements. They argued they used the term "closed" inartfully, noting that members were allowed to attend the entire 3-hour meeting, and ample opportunity was provided for comments during the Q & A session (lasting about 90 minutes).
- Legal Point: ARIZ. REV. STAT. section 33-1804(A) permits members to attend and speak at an appropriate time during deliberations, and mandates they speak once after the Board discusses an agenda item but before formal action. The ALJ noted that legally, a "closed" meeting refers to an executive session, which the Board did not conduct.
Issue 2: Unnoticed Meeting to Approve Operations Manager Qualifications
- Petitioner's Claim: Borruso alleged the Board held un-noticed meetings to write and approve job qualifications for an Operations Manager, violating sections 33-1804(A) and (C). His primary evidence was a former Board President, Ms. Haynie, confirming in a May 6, 2021 meeting that the Board had written and approved the job description.
- Association's Argument: Current Board members testified credibly that Ms. Haynie was wrong and that the Board had never met or voted on the job description. The description posted was similar to a previous one, and Ms. Haynie had allegedly prepared and posted it without Board approval.
Outcome and Final Decision
The Administrative Law Judge concluded that Mr. Borruso failed to meet the required standard of proof (preponderance of the evidence) on both issues.
- Regarding the May 27th Meeting: The Petitioner did not prove a violation of § 33-1804(A). Although the Board was not precise in its terminology, members were allowed to attend the entire meeting, and the evidence showed it was a single meeting where members spoke after the Board's presentation.
- Regarding the Job Qualifications: The Petitioner failed to prove that an un-noticed meeting occurred, as the credible testimony indicated that the former President had been mistaken about the Board’s approval. Therefore, there was no violation of sections 33-1804(A) and (C).
The petition was dismissed.
Questions
Question
Can the HOA Board restrict when homeowners are allowed to speak during a meeting?
Short Answer
Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.
Detailed Answer
The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.
Alj Quote
The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- meetings
- homeowner rights
- speaking limits
Question
If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?
Short Answer
No, not if members are still allowed to attend and observe.
Detailed Answer
Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.
Alj Quote
Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.
Legal Basis
A.R.S. § 33-1804(A) and (C)
Topic Tags
- meetings
- executive session
- definitions
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.
Alj Quote
The standard of proof on all issues in this matter is that of a preponderance of the evidence.
Legal Basis
A.A.C. § R2-19-119
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Is a Board President's verbal admission enough to prove an illegal meeting occurred?
Short Answer
Not necessarily, especially if other testimony contradicts it and there are no records.
Detailed Answer
In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.
Alj Quote
Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation
Legal Basis
Preponderance of Evidence
Topic Tags
- evidence
- board meetings
- testimony
Question
Can I file a single petition for multiple different complaints against my HOA?
Short Answer
Yes, but you must pay the appropriate fee for a multi-issue hearing.
Detailed Answer
When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.
Alj Quote
Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.
Legal Basis
Administrative Procedure
Topic Tags
- filing fees
- procedure
- petitions
Question
Does the Board have to let me speak before they take a formal vote?
Short Answer
Yes, homeowners must be allowed to speak after discussion but before the vote.
Detailed Answer
The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.
Alj Quote
[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- voting
- meetings
- homeowner rights
Case
- Docket No
- 21F-H2121062-REL
- Case Title
- Ronald Borruso vs. Sunland Village East Association
- Decision Date
- 2021-09-21
- Alj Name
- Thomas Shedden
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can the HOA Board restrict when homeowners are allowed to speak during a meeting?
Short Answer
Yes, the Board is allowed to place reasonable time restrictions on speakers and determine the appropriate time for comments.
Detailed Answer
The ALJ cited Arizona law stating that while members have a right to speak, the Board may impose reasonable time restrictions. In this case, requiring members to wait until after the Board's presentation to speak was not a violation.
Alj Quote
The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- meetings
- homeowner rights
- speaking limits
Question
If the Board calls part of a meeting 'closed', is it automatically an illegal executive session?
Short Answer
No, not if members are still allowed to attend and observe.
Detailed Answer
Even if the Board uses the term 'closed' inartfully to mean 'no comments allowed yet,' it is not an illegal meeting if members are physically permitted to attend. A true 'closed' meeting (executive session) is one members cannot attend.
Alj Quote
Consequently, although the Board referred to the initial part of the meeting as being 'closed' because it would not take members’ comments in that portion of the meeting, it was using that word in a different sense than it is used in section 33-1804.
Legal Basis
A.R.S. § 33-1804(A) and (C)
Topic Tags
- meetings
- executive session
- definitions
Question
What standard of proof do I need to meet to win a case against my HOA?
Short Answer
You must prove your case by a 'preponderance of the evidence'.
Detailed Answer
The homeowner (petitioner) bears the burden of proof. This means showing that the allegations are more likely true than not—having the 'greater weight' of evidence.
Alj Quote
The standard of proof on all issues in this matter is that of a preponderance of the evidence.
Legal Basis
A.A.C. § R2-19-119
Topic Tags
- legal standards
- burden of proof
- procedure
Question
Is a Board President's verbal admission enough to prove an illegal meeting occurred?
Short Answer
Not necessarily, especially if other testimony contradicts it and there are no records.
Detailed Answer
In this case, a Board President said 'yes' when asked if the Board met to approve a job description. However, the ALJ found this insufficient because other Board members testified credibly that she was wrong and no such meeting took place.
Alj Quote
Although Ms. Haynie did answer 'yes' when asked, Messrs. Thurn and Fretwell provided credible testimony that she was wrong. … Consequently, the preponderance of the evidence shows that there is no violation
Legal Basis
Preponderance of Evidence
Topic Tags
- evidence
- board meetings
- testimony
Question
Can I file a single petition for multiple different complaints against my HOA?
Short Answer
Yes, but you must pay the appropriate fee for a multi-issue hearing.
Detailed Answer
When filing a petition, you must either identify a single issue or pay the Department the fee required for a multi-issue hearing.
Alj Quote
Mr. Borruso that he was required either to identify a single issue for hearing or to pay to the Department the appropriate fee for a multi-issue hearing.
Legal Basis
Administrative Procedure
Topic Tags
- filing fees
- procedure
- petitions
Question
Does the Board have to let me speak before they take a formal vote?
Short Answer
Yes, homeowners must be allowed to speak after discussion but before the vote.
Detailed Answer
The statute explicitly states that a member must be permitted to speak once after the board has discussed a specific item but before formal action is taken.
Alj Quote
[S]hall permit a member or member's designated representative to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item
Legal Basis
A.R.S. § 33-1804(A)
Topic Tags
- voting
- meetings
- homeowner rights
Case
- Docket No
- 21F-H2121062-REL
- Case Title
- Ronald Borruso vs. Sunland Village East Association
- Decision Date
- 2021-09-21
- Alj Name
- Thomas Shedden
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Ronald Borruso (petitioner)
- Thomas Huston (witness)
Testified for Petitioner
Respondent Side
- Nicholas Nogami (respondent attorney)
Carpenter Hazlewood Delgado & Bolen, LLP - Nikolas Eicher (respondent attorney)
Carpenter Hazlewood Delgado & Bolen, LLP - Mark Thurn (board member)
Sunland Village East Association
Current Board President, testified for Respondent - Marvin Fretwell (board member)
Sunland Village East Association
Testified for Respondent - Joyce Haynie (board member)
Sunland Village East Association
Former President, subject of recall petition - Kim Shallue (board member)
Sunland Village East Association
Presided over May 27th meeting
Neutral Parties
- Thomas Shedden (ALJ)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate - AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of decision transmission - djones (ADRE staff)
Arizona Department of Real Estate
Recipient of decision transmission - DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of decision transmission