Transparency on Trial: Key Lessons from the Timothy Burke v. Cortessa HOA Hearing

1. Introduction: The Clash Between Governance and Transparency

On October 23, 2025, a critical legal proceeding unfolded before Administrative Law Judge Nedra-Su Kawasaki that serves as a cautionary tale for every Homeowners Association in Arizona. The hearing, Timothy Burke v. Cortessa Community Association, brought into sharp focus the often-turbulent intersection of board authority and homeowner transparency.

The case was particularly notable because the Petitioner, Timothy Burke, was the sitting Board Treasurer. In an unusual move, Burke challenged his own HOA and its management firm, Kinney Management Services (KMS), alleging a systemic failure to provide access to financial records and contracts. This dispute highlights a growing trend in HOA governance: the tension between "operational efficiency" and the statutory right of members to inspect the books.

2. The "Gatekeeper" Controversy: Who Controls the Information?

The central conflict involved "protocols" established by HOA President James Gallagher. Under these rules, all records requests were to be routed through the President or a general management email address rather than directly to the Community Manager, Mike Swift.

The Board's Defense President Gallagher and manager Mike Swift testified that these protocols were vital to prevent manager burnout. They argued that if board members and homeowners could contact the manager directly for documents, it would "overload" staff, pulling them away from essential duties like vendor oversight and site inspections. The Board positioned the President as a necessary "gatekeeper" to streamline operations.

The Petitioner's Challenge Petitioner Burke argued that this gatekeeper model was a recipe for a lack of accountability. By funneling all information through a single individual—the President—the HOA effectively created a bottleneck where requests could be ignored or curated.

Consultant’s Analysis: The "gatekeeping" strategy proved to be a failure in practice. During testimony, President Gallagher admitted he did not actually know who was monitoring the "records request" email address or if requests were being fulfilled. This created a "black hole" where statutory requests went to die, proving that while protocols can manage workload, they cannot be used to obstruct legal transparency.

3. Redacted Contracts and "Unreasonable" Requests: Homeowner Experiences

The hearing featured compelling testimony from witnesses Rockwell Kelly and Dara Chavez, which illustrated the real-world consequences of the HOA’s restrictive policies.

• Rockwell Kelly: Testified that in May 2025, he requested the KMS management contract. While the manager verbally acknowledged the request, Kelly was never invited to examine the records nor provided a copy, a clear violation of the 10-day statutory window.
• Dara Chavez: Faced a months-long battle for information. When she requested financial statements, she was told by KMS that her request was "unreasonable."

Records Requested but Withheld or Redacted:

• KMS Management Agreement: Provided to Chavez in a heavily redacted format.
• Landscaping and Waste Management Contracts: Requested by Burke for budget analysis; not provided.
• Insurance Information: Chavez’s requests for the HOA’s insurance carrier name went completely unanswered.
• Financial Statements (2022–2024): Initially ignored or labeled "unreasonable."

Consultant’s Note: It is vital for boards to understand that ARS § 33-1805 does not include a "reasonableness" test for a member's request. The law requires the Association to make records "reasonably available"—it does not give the Board the power to judge whether the homeowner's desire for the information is valid.

4. The Legal Turning Point: Homeowner Rights vs. Board Business

The Administrative Law Judge (ALJ) made a sophisticated distinction between ARS § 33-1805(A), which protects homeowners, and internal board communications.

The ALJ found that because Burke sent his emails in his capacity as "Treasurer" and directed them to "the entire HOA board," those specific requests were "board business" rather than "member requests." Consequently, the HOA’s refusal to fulfill Burke’s specific requests did not technically violate the statute. However, this was a hollow victory for the HOA. Because Burke brought witnesses (Kelly and Chavez) whose rights as homeowners were clearly violated, the HOA was still held liable.

"The undersigned ALJ concludes that… A.R.S. § 33-1805 recognizes that board members are also homeowner members and differentiates records requests made by and on behalf of a homeowner member and requests made by and on behalf of a board member for board purposes."

5. The Verdict: Accountability and the $500 Penalty

The Final Order, issued November 28, 2025, sent a clear message: procedural technicalities will not shield an HOA from its duty to the general membership.

• The Prevailing Party: Despite the dismissal of his Treasurer-level requests, Petitioner Timothy Burke was deemed the prevailing party because he successfully proved the HOA violated the rights of other members.
• Financial Restitution: The HOA was ordered to pay Petitioner $500 (reimbursement of the filing fee) within 30 days.
• Future Compliance: The HOA was mandated to strictly adhere to ARS § 33-1805 for all homeowner requests moving forward.

6. Actionable Takeaways for Homeowners and Boards

To avoid the expense and reputational damage of an administrative hearing, associations must move from a culture of "gatekeeping" to a culture of "disclosure."

1. Establish Clear, Non-Obstructive Protocols: You may designate a specific email for requests, but that email must be monitored. As this case showed, "gatekeeping" often leads to information being lost, which is not a legal defense.
2. Respect the 10-Day Clock: The statute is clear. You have 10 business days to provide an opportunity for examination and 10 business days to provide copies. There is no "unreasonable" exception for large requests.
3. Know the Redaction Limits: Manager Mike Swift testified he redacted the KMS contract because the pricing was "20 years old" and no longer valid. This is not a legal reason for redaction. Under ARS § 33-1805(B), you may only redact for five specific reasons: attorney-client privilege, pending litigation, executive session minutes, personal/financial records of individuals, and job performance records. "Stale pricing" is not on the list.
4. Differentiate Roles (The "Two Hats" Rule): Board members wishing to ensure statutory protection should explicitly state their capacity.

• The Right Way: "I am making this request in my capacity as a homeowner member per ARS § 33-1805…"
• The Risk: Sending requests as "Treasurer" or "Director" for "Board purposes" may exempt the request from statutory protection and the $500 penalty recovery.

7. Conclusion: The Value of Open Books

Transparency is the bedrock of community trust. When a Board allows a management company to set the rules for disclosure—or worse, when the Board acts as a shield for the management company—the fiduciary relationship is inverted. The Burke v. Cortessa hearing serves as a reminder that the Board's primary duty is to the members, not to the convenience of the manager.

As modern HOAs become more complex and budgets grow larger, we must ask: Is your Board exercising its fiduciary duty to oversee the management company, or is the management company controlling the flow of information to the Board? In the eyes of the law, the "gate" must remain open to the members.