Case Summary
| Case ID | 24F-H024-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2024-05-20 |
| Administrative Law Judge | Jenna Clark |
| Outcome | The Administrative Law Judge denied the Petitioners' petition, concluding they failed to meet their burden of proving a violation of ARIZ. REV. STAT. § 33-1248 regarding the May 19, 2023, Executive Board Meeting. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Jeffrey Connell & Corey Cox | Counsel | Ross Meyer, Esq. |
|---|---|---|---|
| Respondent | Casa Del Monte, Inc. | Counsel | Solomon Krotzer, Esq. |
Alleged Violations
ARIZ. REV. STAT. § 33-1248
Outcome Summary
The Administrative Law Judge denied the Petitioners' petition, concluding they failed to meet their burden of proving a violation of ARIZ. REV. STAT. § 33-1248 regarding the May 19, 2023, Executive Board Meeting.
Why this result: Petitioners failed to prove the statutory violation by a preponderance of the evidence, as the Executive Session was deemed appropriate for receiving legal advice or conducting discussion related thereto, which falls under ARIZ. REV. STAT. § 33-1248(A)(1).
Key Issues & Findings
Alleged violation of open meeting law concerning Executive Board Meeting on May 19, 2023
Petitioners alleged the Association violated ARS § 33-1248 by improperly conducting business (Code of Conduct review and vote on minutes) in a closed Executive Session on May 19, 2023, and by failing to provide 48-hour notice.
Orders: Petitioners' petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1248
- ARIZ. REV. STAT. § 33-1248(A)(1)
Analytics Highlights
- ARIZ. REV. STAT. § 33-1248
- ARIZ. REV. STAT. § 33-1248(A)(1)
- ARIZ. REV. STAT. § 32-2199.05
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199(2)
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199.01(D)
- ARIZ. REV. STAT. § 32-2199.02
- ARIZ. REV. STAT. § 41-1092 et seq.
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Audio Overview
Decision Documents
24F-H024-REL Decision – 1138580.pdf
24F-H024-REL Decision – 1144884.pdf
24F-H024-REL Decision – 1146526.pdf
24F-H024-REL Decision – 1161533.pdf
24F-H024-REL Decision – 1179547.pdf
24F-H024-REL Decision – 1138580.pdf
24F-H024-REL Decision – 1144884.pdf
24F-H024-REL Decision – 1146526.pdf
24F-H024-REL Decision – 1161533.pdf
24F-H024-REL Decision – 1179547.pdf
This matter, heard before Administrative Law Judge (ALJ) Jenna Clark in the Office of Administrative Hearings (OAH), concerned a dispute between Jeffrey Connell and Corey Cox (Petitioners) and the homeowners' association, Casa Del Monte, Inc. (Respondent).
Key Facts and Issues:
The core issue referred for the evidentiary hearing was whether the Association "repeatedly violated" Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1248 (the condominium open meeting law) at an Executive Board Meeting on May 19, 2023. Petitioners, newly elected board members, alleged two specific violations: 1) failing to provide 48-hour notice of the meeting, and 2) voting on a topic in closed session.
The central factual dispute revolved around the closed session discussion of a proposed Code of Conduct. Petitioners asserted that the discussion was an attempt to coerce them into signing the Code outside of an open meeting and that Counsel for the Association did not offer genuine legal advice regarding the Code of Conduct. Petitioners ran on a platform of transparency and argued the Code, a non-confidential general document, should not have been discussed in a closed session.
Respondent maintained that the Executive Session was proper because its primary purpose was receiving legal advice from the Association’s general counsel, Curtis Ekmark, which is permitted under ARS § 33-1248(A)(1). The counsel provided guidance regarding board conduct, fiduciary responsibilities, and the legal implications of adopting the Code, even though the Code itself was a draft and ultimately rejected by the Board. Testimony confirmed the Code was "strongly encouraged" by counsel.
Legal Points and Outcome:
The ALJ noted that ARS § 33-1248(A)(1) permits closing a meeting portion only if it is limited to the consideration of "legal advice from an attorney for the board or the association". Legal advice is defined as "guidance given by lawyers to their clients".
Crucially, the ALJ narrowed the scope of the decision: because Petitioners only paid for the adjudication of one issue, the Tribunal would not address the tangential issue of whether the Association properly provided 48-hour notice of the meeting.
The Petitioners bore the burden of proving the alleged statutory violation by a preponderance of the evidence. The ALJ concluded that Petitioners failed to sustain their burden of proof.
The ALJ found that the Board had advanced notice of the session to discuss the Code of Conduct and had the opportunity to ask questions, noting that incumbent members had already signed the document. The ALJ held that the quantity or quality of the legal advice given was irrelevant. Since the record reflected that the meeting's closure was not solely for non-legal purposes (like reviewing non-privileged documents from a public website), the motion to enter Executive Session based on receiving legal advice was found permissible.
The Final Order dictated that Petitioners' petition was denied. The hearing concluded with a stipulation to submit written closing briefs by April 29, 2024 (after an extension was granted).
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
- burden of proof
- legal standards
- procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
- executive session
- legal advice
- open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
- hearing procedure
- filing fees
- scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
- evidence
- board documents
- voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
- executive session
- public records
- violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Standard of Proof
Topic Tags
- legal standards
- evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
- code of conduct
- executive session
- board meetings
Case
- Docket No
- 24F-H024-REL
- Case Title
- Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
- Decision Date
- 2024-05-20
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Who is responsible for proving that the HOA violated the law in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
The homeowner must prove by a 'preponderance of the evidence' that the HOA committed the alleged violation. This means showing that the claim is more likely true than not.
Alj Quote
In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent committed the alleged statutory violation.
Legal Basis
Preponderance of the Evidence
Topic Tags
- burden of proof
- legal standards
- procedure
Question
Can the HOA board go into a closed executive session to get legal advice?
Short Answer
Yes, the board may close a meeting to receive legal advice from the association's attorney.
Detailed Answer
State statute explicitly allows portions of meetings to be closed if limited to consideration of legal advice from an attorney for the board or association. Legal advice is defined broadly as guidance given by lawyers to their clients.
Alj Quote
ARIZ. REV. STAT. § 33-1248(A)(1) provides, in pertinent part, that 'Any portion of a meeting may be closed only if that portion of the meeting is limited to consideration of one or more of the following: (1) legal advice from an attorney for the board or the association.'
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
- executive session
- legal advice
- open meeting laws
Question
If I file a petition for one specific violation, can I bring up other issues during the hearing?
Short Answer
No, the tribunal will generally only address the specific issue paid for in the petition.
Detailed Answer
The ALJ may refuse to address tangential issues or additional complaints raised during the hearing if the petitioner only paid the filing fee for the adjudication of a single specific issue.
Alj Quote
Because Petitioners only paid for the adjudication of one (1) issue, this Tribunal may not address all of the tangential issues Petitioners raised during the presentation of their case or closing arguments, including whether the Association properly provided notice of its May 19, 2023, Board Meeting.
Legal Basis
Procedural Scope
Topic Tags
- hearing procedure
- filing fees
- scope of hearing
Question
Does draft language stating a policy 'has been approved' prove the board secretly voted on it?
Short Answer
No, the tense used in a draft document is considered irrelevant if the document was not actually adopted.
Detailed Answer
Even if a proposed document uses language like 'The Board… has approved,' this is considered a 'red herring' if the evidence shows the document was merely a proposal that board members were advised to sign but ultimately declined.
Alj Quote
The fact that language in the proposal used current language, rather than future tense, is a Red Herring argument and irrelevant.
Legal Basis
N/A
Topic Tags
- evidence
- board documents
- voting
Question
Is it a violation for the board to discuss public materials (like a website printout) in executive session?
Short Answer
Not necessarily, provided that discussing those materials was not the sole purpose of the closed session.
Detailed Answer
While discussing public materials alone is technically not legal advice, it does not invalidate an executive session if the session also included legitimate purposes, such as receiving counsel's advice on other matters.
Alj Quote
While it is accurate that going into Executive Session for the purpose of discussing reading materials printed from a public website regarding revision of Association’s governing documents is not technically legal advice, as it is inherently unprivileged documentation, this record reflects that this was not the sole purpose of closing the Board Meeting from the public.
Legal Basis
A.R.S. § 33-1248
Topic Tags
- executive session
- public records
- violations
Question
What is the standard of proof required to win an HOA dispute case?
Short Answer
Preponderance of the evidence.
Detailed Answer
This standard requires proof that convinces the judge that the claim is 'more probably true than not.' It is based on the convincing force and weight of the evidence, not just the number of witnesses.
Alj Quote
A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.
Legal Basis
Standard of Proof
Topic Tags
- legal standards
- evidence
Question
Can the board discuss a Code of Conduct in executive session?
Short Answer
Yes, if the discussion involves receiving legal advice or guidance from the association's attorney.
Detailed Answer
The ALJ found no violation when the board went into executive session to discuss a Code of Conduct because the board members were receiving information, asking questions, and being advised by counsel regarding the document.
Alj Quote
The crux of the underlying issue is that newly elected Board Members, Petitioners, were provided with information regarding the Code of Conduct, the opportunity to discuss and ask questions privately, and advised to sign by Counsel for the Association; which they declined as was their right.
Legal Basis
A.R.S. § 33-1248(A)(1)
Topic Tags
- code of conduct
- executive session
- board meetings
Case
- Docket No
- 24F-H024-REL
- Case Title
- Jeffrey Connell & Corey Cox v. Casa Del Monte, Inc.
- Decision Date
- 2024-05-20
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Jeffrey Connell (petitioner)
Casa Del Monte, Inc. HOA
Also served as a board member. - Corey Cox (petitioner)
Casa Del Monte, Inc. HOA
Also served as a board member. - Ross Meyer (attorney)
Meyer & Partners, PLLC; Enara Law PLLC
Counsel for Petitioners. - Jonathan Dessaules (witness)
The Sol Law Group
Testified as a subject matter expert/HOA attorney. - Matthew Elias (attorney)
Enara Law PLLC
Counsel for Petitioners; listed in final decision transmittal.
Respondent Side
- Lori N. Brown (attorney)
Gordon Rees Scully Mansukahani, LLP
Counsel for Respondent. - Benjamin Bednarek (attorney)
Gordon Rees Scully Mansukahani, LLP
Counsel for Respondent. - Curtis Ekmark (HOA attorney)
Casa Del Monte, Inc. HOA
Association Corporate Counsel/General Counsel. - Solomon Krotzer (attorney)
Gordon Rees Scully Mansukahani, LLP
Counsel for Respondent; appeared at hearing (referred to as 'Paulo' once). - Mary Lou Ehmann (property manager)
Pride Management
Former Community Manager for Casa Del Monte; provided testimony. - Jonathan Ryder (board president)
Casa Del Monte, Inc. HOA
Also referred to as John Ryder. - Jean Yen (board member)
Casa Del Monte, Inc. HOA
Also referred to as Jeannie Yen; Treasurer. - Bill McMichael (board member)
Casa Del Monte, Inc. HOA
Vice President. - Jim Burton (board member)
Casa Del Monte, Inc. HOA
Secretary.
Neutral Parties
- Jenna Clark (ALJ)
OAH - Susan Nicolson (Commissioner)
ADRE - AHansen (ADRE staff)
ADRE
Recipient of official case transmission. - vnunez (ADRE staff)
ADRE
Recipient of official case transmission. - djones (ADRE staff)
ADRE
Recipient of official case transmission. - labril (ADRE staff)
ADRE
Recipient of official case transmission. - kvanfredenberg (ADRE staff)
ADRE
Recipient of official case transmission.