Barbara G Kunkel v. Agua Dulce Homeowner Association

Posted on March 9, 2026 by [email protected]

Case Summary

Case ID	25F-H092-REL
Agency	—
Tribunal	—
Decision Date	2026-03-09
Administrative Law Judge	NSK
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Barbara G Kunkel	Counsel	—
Respondent	Agua Dulce Homeowner Association	Counsel	Sean K. Moynihan, Esq. (Smith & Wamsley PLLC)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H092-REL Decision – 1377789.pdf

Uploaded 2026-04-24T12:55:43 (62.7 KB)

25F-H092-REL Decision – 1402762.pdf

Uploaded 2026-04-24T12:55:46 (123.9 KB)

Briefing Document: Kunkel v. Agua Dulce Homeowner Association (Case No. 25F-H092-REL)

Executive Summary

This briefing document analyzes the administrative dispute between Barbara G. Kunkel (Petitioner) and the Agua Dulce Homeowner Association (Respondent) regarding the statutory validity of a special recall meeting notice. The central conflict focused on whether a meeting notice metered on June 23, 2025, but postmarked on June 24, 2025, complied with the 10-day advance notice requirement for a meeting held on July 3, 2025.

The Petitioner contended that the postmark date should serve as the legal date of mailing, which would have resulted in only nine days of notice, thereby violating A.R.S. § 33-1804(B) and necessitating the automatic removal of the board under A.R.S. § 33-1813(D). The Respondent argued that "sent" refers to the date of deposit in the mail, which was confirmed by the private meter stamp.

The Office of Administrative Hearings (OAH) ruled in favor of the Respondent. The Administrative Law Judge (ALJ) determined that under United States Postal Service (USPS) regulations and local processing logistics, the notice was "sent" on June 23, 2025, making it timely under Arizona law.

Detailed Analysis of Key Themes

1. Statutory Notice and Computation of Time

The dispute is governed by Arizona Revised Statutes (A.R.S.) Title 33, which regulates planned communities. The primary legal standards applied in this case include:

A.R.S. § 33-1804(B): Requires that notice of a special meeting be sent via United States mail not fewer than 10 days nor more than 50 days in advance of the meeting.
A.R.S. § 1-243(A): Dictates the method for computing time, excluding the first day (the meeting date) and including the last day.
A.R.S. § 33-1813(D): Outlines the remedy for failure to properly call or notice a recall meeting, which the Petitioner argued should result in the automatic removal of the board.

For a meeting held on July 3, 2025, the 10th day counting backward (excluding July 3) is June 23, 2025. The core of the case rested on whether the notice was "sent" on June 23 or June 24.

2. "Sent" vs. "Postmarked"

A critical theme in the hearing was the interpretation of the word "sent" as used in A.R.S. § 33-1804(B).

Petitioner’s Position: Argued that the official USPS postmark is the only reliable evidence of mailing. Since the postmark was June 24, the Petitioner asserted the notice was late.
Respondent’s Position: Argued that "sent" means the deposit of the notice in the mail. They cited the USPS Domestic Mail Manual (DMM), stating that a private meter stamp must reflect the actual date of deposit. If the mail had been deposited on the 24th with a 23rd meter stamp, the USPS would not have processed it without a date correction.
ALJ Conclusion: The ALJ found that the statute only requires the notice to be "sent," not "postmarked." The evidence showed the notice was metered in Tucson on June 23.

3. USPS Logistics and Processing Realities

The decision leaned heavily on the technicalities of mail processing in Arizona. The ALJ took judicial notice of the following:

Consolidated Processing: Since 2013, the USPS has routed letter mail from Tucson to Phoenix for automated processing.
DMM § 608.11.3: Explicitly states that a postmark date does not necessarily indicate the first day the Postal Service had possession of a mailpiece; it represents the date of the first automated-processing operation.
Timing: Because the mail was metered in Tucson on June 23 and postmarked in Phoenix on June 24, the ALJ concluded it was logically in the possession of the USPS on June 23 to allow for transport to the Phoenix processing facility.

4. Requested Relief and Board Transition

The Petitioner sought an order declaring the recall remedy valid and potentially removing the entire board. However, the Respondent noted that the Petitioner had resigned from the board prior to the meeting, and no other directors were named in the removal petition. The Respondent argued that the Petitioner had already effectively received the relief sought (removal from the board) through her own resignation.

Important Quotes

From the Petitioner (Barbara G. Kunkel)

"The counting 6/24 excluded to 7/3 included yields 9 days, not 10… Because the February annual meeting is imminent… time is of the essence. I respectfully request an expedited ruling or an interim order clarifying that the recall remedy proceeds on its own timeline."

Context: Opening statement during the hearing, emphasizing the urgency of the ruling due to upcoming HOA elections.

From Respondent Counsel (Sean Moynihan, Esq.)

"The statute is specific that the notice must be sent… It does not say it must be mailed… it does not say it must be postmarked… we know with certainty that this notice was deposited in the mail on June 23rd. If it had been deposited on June 24th, it would not have been processed by the postal service."

Context: Closing argument focusing on the distinction between the act of sending and the act of postmarking.

From the Administrative Law Judge (Nedra-Su Kawasaki)

"It is reasonable to conclude that a notice stamped in Tucson on June 23, 2025, and postmarked in Phoenix on June 24, 2025, had to be in the possession of the Postal Service no later than June 23, 2025. Therefore… the notice at issue was mailed timely."

Context: The final Finding of Fact in the ALJ’s decision, which determined the outcome of the case.

Key Data and Statutory References

Statute/Reference	Detail
A.R.S. § 33-1804(B)	Notice must be sent 10–50 days before a meeting.
A.R.S. § 1-243(A)	Time computation: exclude first day, include last.
DMM § 604.4.6.2	Metered mail must be deposited on the date shown in the indicia.
DMM § 608.11.3	Postmark indicates processing date, not necessarily possession date.
Hearing Date	January 9, 2026.
Decision Date	March 9, 2026.

Actionable Insights

Documentation of Deposit: For HOAs and management companies, maintaining records of when mail is actually deposited (e.g., certificates of mailing or affidavits of management) is more critical than the postmark, as postmarks often reflect processing delays.
Private Meter Reliability: Private meter stamps serve as strong evidence of the date of mailing in administrative hearings, provided they align with USPS processing logistics (such as the Tucson-to-Phoenix routing).
Statutory Compliance: Litigants should focus on the specific language of the statute (e.g., "sent" vs. "received"). In Arizona planned community law, the act of "sending" is the triggering event for notice compliance.
Remediation Limits: The Office of Administrative Hearings is limited by A.R.S. § 32-2199.02 to ordering parties to abide by statutes or levying civil penalties; it may not have the authority to grant broader equitable relief or "vacate" a board unless specific statutory failures are proven.

Study Guide: Kunkel v. Agua Dulce Homeowner Association (No. 25F-H092-REL)

This study guide provides a comprehensive overview of the administrative hearing and subsequent decision regarding the dispute between Barbara G. Kunkel and the Agua Dulce Homeowner Association. It covers the legal standards for notice in planned communities, the methodology for computing statutory time, and the distinction between mailing dates and postmarks.

I. Case Overview and Key Concepts

Central Dispute

The primary issue in this case was whether the Agua Dulce Homeowner Association (Respondent) provided timely notice for a special recall meeting held on July 3, 2025. Barbara G. Kunkel (Petitioner) alleged the notice was late, violating A.R.S. § 33-1804(B), and argued that under A.R.S. § 33-1813(D), the failure to hold a lawful recall meeting should have resulted in the automatic removal of the entire Board of Directors.

Key Legal Standards

A.R.S. § 33-1804(B): Requires that notice for a special meeting be "sent" by United States mail not fewer than 10 nor more than 50 days in advance of the meeting.
A.R.S. § 1-243(A): Establishes the method for computing time: exclude the first day and include the last day.
Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence (showing the contention is more probably true than not).

The "Sent" vs. "Postmarked" Conflict

The core of the legal argument rested on the interpretation of when a notice is considered "sent."

Petitioner's View: The postmark date (June 24, 2025) is the official date of mailing. Because June 24 is only 9 days before July 3 (using statutory counting), the notice was untimely.
Respondent's View: "Sent" means the date the mail was deposited with the USPS. The private meter stamp (June 23, 2025) serves as evidence of deposit.
ALJ Decision: The Administrative Law Judge (ALJ) ruled that the notice was timely. The ALJ noted that the USPS Domestic Mail Manual (DMM) clarifies that postmarks—especially those from processing facilities—do not necessarily reflect the date the USPS first accepted possession of the mail.

II. Timeline of Relevant Events

Date	Event Description
June 4, 2025	HOA Board authorizes Sienna Community Management and Smith & Wamsley to handle the recall process.
June 23, 2025	Notice packet is stamped by private meter in Tucson. This is the 10th day prior to the meeting.
June 24, 2025	Notice packet receives an automated USPS postmark at the Phoenix processing facility.
July 3, 2025	The special recall meeting is held.
October 22, 2025	Petitioner files a formal dispute with the Arizona Department of Real Estate (ADRE).
December 12, 2025	ALJ Nedra-Su Kawasaki issues an Order Setting Virtual Hearing.
January 9, 2026	Evidentiary hearing is conducted via Google Meet.
March 9, 2026	ALJ issues the final decision in favor of the Respondent.

III. Short-Answer Practice Questions

According to A.R.S. § 1-243(A), how should the 10-day notice period for a July 3rd meeting be calculated?

Answer: Exclude the first day (July 3) and count backward. The 10th day is June 23. Therefore, notice must be sent no later than June 23.

What was the Petitioner’s primary evidence that the notice was sent late?

Answer: Petitioner’s Exhibit 3, which showed a USPS postmark of June 24, 2025, rather than the required June 23 date.

How did the Respondent explain the discrepancy between the June 23 meter stamp and the June 24 postmark?

Answer: Respondent argued that the mail was deposited in Tucson on the 23rd. Because USPS consolidated Tucson and Phoenix processing in 2013, mail deposited in Tucson is routed to Phoenix, resulting in a postmark from the following day.

What does the USPS Domestic Mail Manual (DMM) say about the relationship between a postmark and the date of USPS possession?

Answer: The DMM states that a postmark date does not necessarily indicate the first day the Postal Service had possession of a mailpiece, as postmarks applied at processing facilities may reflect a later date.

What is the legal definition of "preponderance of the evidence" used in this hearing?

Answer: Proof that convinces the trier of fact that a contention is "more probably true than not."

Why did the ALJ refuse to remove the Board of Directors as requested by the Petitioner?

Answer: The ALJ found that the notice was sent timely (June 23), meaning no statutory violation occurred. Furthermore, the ALJ noted the tribunal is only authorized to order compliance with statutes and levy civil penalties, not to order "other remediation" like vacating a board.

IV. Essay Prompts for Deeper Exploration

Statutory Interpretation of "Sent": Analyze the distinction between "sent," "mailed," and "postmarked." How does the ALJ’s reliance on the USPS Domestic Mail Manual (DMM) influence the interpretation of Arizona's planned community statutes? Discuss whether a "postmark" should be the absolute standard for legal deadlines or if "date of deposit" is a more equitable measure.

Administrative Process and Burden of Proof: Explain the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings in resolving HOA disputes. Discuss the challenges a Petitioner faces in meeting the "preponderance of the evidence" standard when challenging the internal administrative actions of an HOA, such as the timing of a mail drop.

The Impact of Logistics on Law: In this case, the 2013 consolidation of USPS processing centers in Arizona played a pivotal role in the judge's decision. Evaluate how external infrastructure changes (like postal routing) can affect the practical application of state laws regarding notice and deadlines.

V. Glossary of Important Terms

Administrative Law Judge (ALJ): An official who presides over federal or state administrative proceedings, acting as both trier of fact and law.
A.R.S. § 33-1804(B): The specific Arizona Revised Statute governing notice requirements for meetings in planned communities.
Indicia: Markings on a mailpiece (such as a meter stamp or PC Postage) that indicate postage has been paid.
Notice of Hearing: A formal document notifying parties of the date, time, and location (or virtual platform) of a legal proceeding.
Planned Community: A real estate development where owners are mandatory members of an association (HOA) and are subject to specific statutes (Title 33, Chapter 16).
Postmark: A marking applied by the USPS indicating the date and location where a mailpiece was processed or accepted at a retail unit.
Preponderance of the Evidence: The evidentiary standard in civil and administrative cases requiring that a claim be more likely true than not.
Private Meter Stamp: A postage mark applied by a private machine (often in an office) rather than by the post office. Under DMM rules, the date on the meter must be the actual date of deposit.
Recall Meeting: A special meeting called specifically for the purpose of voting on the removal of one or more members of the Board of Directors.

The 10-Day Rule: Lessons from the Kunkel v. Agua Dulce HOA Recall Dispute

1. Introduction: The High Stakes of HOA Recalls

HOA recall elections are the "nuclear option" of community governance. In Arizona, these proceedings are fraught with tension because the statutory stakes are absolute. Under A.R.S. § 33-1813(D), if a recall is not noticed, called, and held in strict accordance with the law, the "stick" is severe: the entire board can face automatic removal. Because of this, technicalities regarding notice timelines are frequently used as "gotcha" tactics by disgruntled members seeking to invalidate an election.

The case of Barbara G. Kunkel v. Agua Dulce Homeowner Association serves as a definitive cautionary tale regarding these timelines. The dispute centered on a narrow 48-hour window and a fundamental legal question: In the eyes of Arizona law, when is a notice actually "sent"? The answer provides a vital roadmap for boards and homeowners navigating the treacherous waters of statutory compliance.

2. The Timeline: A Dispute Over Forty-Eight Hours

The conflict in Kunkel arose from a discrepancy between the physical markings on the envelopes sent to homeowners. While the HOA’s management intended to comply with the 10-day requirement, the official USPS postmark appeared to tell a different story.

The Recall Meeting Timeline (2025)

Date	Event	Legal Status
June 23	Private Meter Mark applied in Tucson / Management confirmed deposit.	HOA’s Claimed Date
June 24	Official USPS Postmark (Phoenix Processing Center).	Petitioner’s Evidence
July 3	The date the Recall Meeting was held.	The Event Date

The Petitioner argued that the June 24 postmark was the only valid evidence of when the notice was "sent." Based on this, the Petitioner filed a claim asserting that the statutory deadline for mailing was June 22, and that the June 24 postmark was two days late, rendering the entire recall process void.

3. Arizona’s "Notice Math": How to Count to Ten

To resolve the dispute, the Administrative Law Judge (ALJ) utilized the "Notice Math" framework established by A.R.S. § 33-1804(B) and A.R.S. § 1-243(A). While the Petitioner claimed the deadline was June 22, the ALJ applied the standard computation of time to arrive at a different conclusion.

The ALJ computed the 10-day requirement using this bolded logic:

Exclude the First Day: Per A.R.S. § 1-243(A), you do not count the day of the meeting itself (July 3).
Count Backward: From July 2, you count back ten full days.
Include the Last Day: The tenth day moving backward is June 23.

This calculation effectively rejected the Petitioner’s argument that the deadline was the 22nd. Consequently, the case turned entirely on whether the HOA "sent" the notice on the 23rd or the 24th.

4. The "Postmark" Trap: Meter Marks vs. USPS Processing

The crux of the hearing involved a deep dive into the USPS Domestic Mail Manual (DMM). The Petitioner relied on the "Postmark Trap"—the assumption that the black stamp on the envelope is the legal date of mailing. However, the ALJ examined the technical evidence of two distinct markings:

Private Meter Indicia (June 23): Under DMM § 604.4.6.2, mail pieces bearing a private meter date must be deposited on that same date. A "stale" meter mark (one dated earlier than the actual deposit) is generally rejected or requires a correction. Thus, the red June 23 mark served as contemporaneous evidence of the HOA’s act of depositing the mail.
USPS Postmark (June 24): Per DMM § 608.11.1, a postmark applied at a processing facility represents the "first automated-processing operation," not necessarily the date the USPS took possession of the mail.

The "smoking gun" in the HOA’s defense was the ALJ’s use of Administrative Notice regarding regional mailing logistics. The ALJ acknowledged the 2013 USPS consolidation, which closed Tucson’s processing center and routed all Tucson-originated mail to Phoenix. The court concluded that for a Tucson letter to receive a Phoenix postmark on the 24th, it was a "reasonable conclusion" that the mail was already in the possession of the USPS by the 23rd.

5. The Verdict: Why the HOA Prevailed

The ALJ ruled in favor of the Agua Dulce HOA, finding no statutory violation. The decision rested on a sharp distinction between the word "sent" in A.R.S. § 33-1804(B) and the word "postmarked."

The ALJ clarified that the statute requires notice to be sent—meaning placed into the custody of the USPS—rather than processed or stamped. Because the DMM confirms that a processing facility postmark may be later than the date of acceptance, and because management testified to depositing the mail on the 23rd, the HOA met its burden. The $500 filing fee paid by the Petitioner could not overcome the technical reality of how the USPS operates.

6. Key Takeaways for Homeowners and HOA Boards

As a governance advocate, I recommend that communities view this case as a warning. Even if you are legally in the right, technical ambiguity leads to litigation.

"Sent" vs. "Postmarked": Understand that "Sent" is the act of surrender to the USPS. However, avoid the "Postmark Trap" by aiming to send notices 12 to 13 days in advance. A two-day buffer renders these disputes moot and protects the board from the "automatic removal" risk of A.R.S. § 33-1813(D).
Maintain Proof of Deposit: Do not rely solely on a meter mark. Boards should require management to maintain a contemporaneous mailing log or obtain a "Certificate of Mailing" (Form 3817) for recall notices. This provides a paper trail that survives the delay of regional processing.
The Power of Administrative Notice: Be aware that courts can and will take notice of regional realities, such as the Tucson-to-Phoenix mail route. If you are a homeowner challenging a notice, a postmark alone may not be the "slam dunk" evidence you think it is.

7. Conclusion: Transparency and Compliance

Strict adherence to statutory notice requirements is the only way to avoid the high cost of administrative hearings and legal fees. In this case, the Petitioner's $500 filing fee and the HOA's legal defense costs were the price of a single day’s ambiguity.

Both boards and members benefit from transparency. By understanding "Notice Math" and the logistics of the USPS, communities can ensure that governance is decided on the merits of the leadership—not on the timing of a mail truck.

Case Participants

Petitioner Side

Barbara G Kunkel (Petitioner)
Homeowner

Respondent Side

Sean K. Moynihan (Attorney)
Smith & Wamsley PLLC
Representing Respondent
Patricia Stracicia (Board Director)
Agua Dulce Homeowner Association
Testified as a witness
Cindy Reilly (Board Director)
Agua Dulce Homeowner Association
Testified as a witness
Jena Carpenter (Community Association Manager)
Sienna Community Management
Incoming agent who testified as a witness
Jose Bacerra (Outgoing Community Association Manager)
Cadden Community Management

Neutral Parties

Nedra-Su Kawasaki (Administrative Law Judge)
Office of Administrative Hearings
Susan Nicolson (Commissioner)
Arizona Department of Real Estate

Timothy A Burke v. Cortessa Community Association

Posted on November 28, 2025 by [email protected]

Case Summary

Case ID	25F-H072-REL
Agency	—
Tribunal	—
Decision Date	2025-11-28
Administrative Law Judge	NSK
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Timothy A. Burke	Counsel	—
Respondent	Cortessa Community Association	Counsel	Edith I. Rudder, Esq., Amber P. Li, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

25F-H072-REL Decision – 1373412.pdf

Uploaded 2026-04-24T12:53:26 (150.5 KB)

Briefing Document: Timothy A. Burke v. Cortessa Community Association

Executive Summary

On October 23, 2025, an evidentiary hearing was held before the Arizona Office of Administrative Hearings regarding a dispute between Timothy A. Burke (Petitioner) and the Cortessa Community Association (Respondent). The matter, docketed as No. 25F-H072-REL, centered on alleged violations of A.R.S. § 33-1805, which governs the disclosure of financial and other records to association members.

The Petitioner, who served as the association’s Treasurer, alleged that the association and its managing agent, Kinney Management Services (KMS), failed to provide requested financial data, contracts, and market studies within the statutory 10-day period. The Respondent argued that they had complied with the law and that the Petitioner's requests were often handled as a courtesy or were outside established protocols.

The Administrative Law Judge (ALJ), Nedra-Su Kawasaki, ultimately determined that while the Petitioner’s specific requests made in his capacity as a Board member did not fall under the protections of A.R.S. § 33-1805(A), the Respondent did violate the statute concerning requests made by other homeowner members. The Respondent was ordered to reimburse the Petitioner’s $500 filing fee and comply with the statute for all future homeowner requests.

Detailed Analysis of Key Themes

1. Statutory Compliance and the 10-Day Rule

Under A.R.S. § 33-1805, planned community associations must make all financial and other records reasonably available for examination within ten business days of a written request. If a member requests to purchase copies, the association similarly has ten business days to provide them, with a maximum charge of fifteen cents per page.

The hearing revealed a systemic breakdown in meeting these timelines:

Witness Rockwell Kelly testified to making a request for the KMS management contract on May 6, 2025, which remained unfulfilled as of the hearing date in October.
Witness Dara Chavez detailed a series of requests for financial statements and insurance information starting in January 2025 that were met with claims that the requests were "unreasonable" or were simply ignored.

2. Operational Protocols vs. Legal Access

A central conflict in the case was the Respondent’s establishment of specific protocols for record requests.

The "Gatekeeper" Protocol: Board President Jim Gallagher testified that he required requests to be funneled through him or a specific KMS email address to prevent Community Manager Mike Swift from being "overloaded."
Petitioner's Counter-Argument: Burke argued that this protocol created a "gatekeeper" who could unilaterally decide what information reached Board members, potentially obscuring financial mismanagement or preventing the Treasurer from fulfilling his fiduciary duties.
KMS Procedure: Michael Swift testified that KMS uses a centralized email system ([email protected]) for all managed communities. The ALJ noted that while the Board can delegate duties to a Managing Agent, such delegation does not relieve the Board of its legal obligation to ensure statutory compliance.

3. Redaction and Transparency

The issue of redacted documents was a point of contention. Dara Chavez testified that when she finally received the KMS management contract, all costs and pricing were redacted.

Respondent’s Justification: Michael Swift argued the contract was 20 years old and the pricing was no longer valid. Redactions were made so that "no one would rely on that information as accurate."
Analysis: The Petitioner and witnesses argued that redactions defeated the purpose of the records request, which was to understand the association's financial obligations and cost-saving opportunities.

4. The Dual Role of Board Members

The ALJ’s decision hinged on a critical legal distinction: the capacity in which a request is made.

Association Member vs. Board Member: A.R.S. § 33-1805(A) explicitly protects "members." Because Burke’s requests were sent from an email identified as "Tim Cortessa HOA Board Member" and requested data for the "entire HOA board of directors," the ALJ ruled these were "Board business" requests rather than "homeowner" requests.
Legal Precedent: The ALJ concluded that the statute recognizes board members as homeowners but differentiates between requests made for personal examination and those made for board purposes.

Important Quotes with Context

On the "Gatekeeper" Issue

Timothy Burke: "The question was… relative to the president being allowed to establish unilateral protocols to become the gatekeeper of distribution of information… [This] gives them absolute power to decide what information would or would not be distributed to board members."

Context: Burke was challenging President Gallagher's directive that all information requests go through the President's office rather than directly to the management company.

On Redacted Contracts

Michael Swift: "This agreement is 20 years old… the pricing that was listed on here was no longer valid. So, it needed to be removed… you didn't want anyone to rely on that information as accurate."

Context: Swift explaining why KMS provided redacted contracts to homeowners, claiming it was to prevent them from seeing outdated fee schedules.

On Statutory Responsibility

Administrative Law Judge Kawasaki: "Although Respondent employed and delegated to KMS its responsibility to take such actions… no such delegation relieved the Board of its obligation to perform the delegated duty."

Context: Found in the Conclusions of Law, this reinforces that a Board cannot blame a management company for failing to meet state laws regarding record disclosure.

Evidence Summary Table

Exhibit	Provider	Description/Purpose
Petitioner Ex. 8	Burke	Association Bylaws regarding Managing Agent and Board powers.
Petitioner Ex. 10	Burke	Emails showing attachments provided only after the ADR petition was filed.
Respondent Ex. 5	Association	Correspondence regarding the President's authority to set protocols.
Respondent Ex. 6	Association	Email from Burke regarding the 2025 operating budget.
Respondent Ex. 7	Association	Email from Gallagher to Burke regarding the "unnecessary" nature of invoice requests.
Respondent Ex. 8	Association	Email from Burke to Swift insisting on information for a meeting agenda.

Actionable Insights

Based on the ALJ's decision and the testimony provided, the following insights are relevant for the administration of Planned Community Associations:

Capacity Matters: Board members seeking records under A.R.S. § 33-1805 should explicitly state when they are requesting records in their capacity as a homeowner/member rather than as a director to ensure they receive statutory protection.
Delegation is Not Immunity: Boards must actively oversee their management companies' record-keeping departments. If a management company's centralized "Records Request" email fails to respond within 10 days, the Association Board remains legally liable.
Redaction Limits: Redacting financial costs from association contracts is likely a violation of the "all financial and other records" clause of the statute, as demonstrated by the ALJ's finding that the association violated the law when failing to provide unredacted records to witnesses Kelly and Chavez.
Protocol Clarity: Associations should document and distribute a formal, written records request procedure to all members to avoid confusion and ensure that "ignorance of protocol" cannot be used as a defense for non-compliance.
Budgeting Transparency: Treasurers require access to raw data (invoices and receipts) to perform cost-saving analyses. Obstructing this access under the guise of "administrative efficiency" can lead to legal challenges regarding fiduciary duty.

Study Guide: Timothy A. Burke v. Cortessa Community Association

This study guide provides a comprehensive overview of the legal dispute between Timothy A. Burke and the Cortessa Community Association regarding records requests under Arizona law. It synthesizes the hearing testimony, statutory interpretations, and the final administrative decision.

I. Key Concepts and Case Overview

Legal Framework: A.R.S. § 33-1805

The central pillar of this case is Arizona Revised Statute § 33-1805, which governs the maintenance and disclosure of records for planned communities. Key provisions include:

Availability: All financial and other records must be made reasonably available for examination by any member or their designated representative.
Timeline: Associations have 10 business days to fulfill a request for examination or to provide copies.
Fees: Associations may not charge for the review of materials but may charge up to 15 cents per page for copies.
Exemptions: Certain records may be withheld, including privileged attorney-client communications, pending litigation, and personal/financial records of individual members or employees.

The Conflict: Capacity and Protocol

The dispute arose when Timothy Burke, acting as both a homeowner and the Association Treasurer, alleged that the Cortessa Community Association and its managing agent, Kinney Management Services (KMS), failed to provide requested financial documents and contracts.

Core Arguments:

Party	Primary Argument
Petitioner (Burke)	The HOA and KMS failed to provide records within the 10-day statutory window. He argued that the HOA President acted as a "gatekeeper," unilaterally establishing protocols that obstructed access to data necessary for his role as Treasurer.
Respondent (HOA)	The Association claimed compliance with the statute. They argued that specific protocols (e.g., using a dedicated "records request" email) must be followed and that the statute does not require the Association to create new reports that do not already exist.

Judicial Findings

The Administrative Law Judge (ALJ) made a critical distinction between Homeowner Members and Board Members:

Member Capacity: Requests made by homeowners (like witness Rockwell Kelly and Dara Chavez) are protected under A.R.S. § 33-1805(A). The HOA was found to have violated the statute by failing to provide these individuals with the requested contracts and unredacted financial information.
Board Capacity: Requests made by Timothy Burke were self-identified as "Board Member" business and intended for the "entire HOA board of directors." The ALJ concluded that A.R.S. § 33-1805(A) does not apply to requests made in a director’s capacity for board purposes.

II. Short-Answer Practice Questions

According to A.R.S. § 33-1805, how many business days does an association have to provide copies of requested records?

Answer: Ten business days.

What is the maximum amount an association can charge per page for copies of records?

Answer: Fifteen cents ($0.15) per page.

Identify three types of records that an association is permitted to withhold from disclosure.

Answer: (1) Privileged communications with an attorney, (2) pending litigation records, and (3) personal, health, or financial records of an individual member or employee.

Why was Michael Swift's redaction of the KMS management agreement controversial in the hearing?

Answer: Homeowner Dara Chavez testified she received a redacted copy where costs were hidden, preventing her from seeing what the community was being charged. Swift argued the redactions were necessary because the 20-year-old agreement contained outdated pricing that might be misleading.

What specific protocol did Kinney Management Services (KMS) establish for records requests?

Answer: Owners were directed to send requests to a specific email address: [email protected].

What was the ALJ’s ruling regarding the $500 ADR filing fee paid by the Petitioner?

Answer: The Respondent (HOA) was ordered to reimburse the Petitioner the $500 filing fee because the Petitioner was deemed the prevailing party regarding homeowner member requests.

In the context of the hearing, what does it mean that an association is not required to "create" records?

Answer: Under the statute, if a specific report or record does not already exist in the association’s files, the association is not legally obligated to generate or synthesize new data to fulfill a member's request.

III. Essay Prompts for Deeper Exploration

The "Gatekeeper" Dilemma: Discuss the ethical and legal implications of an HOA President requiring all records requests to pass through them for "delegation." Does this practice ensure efficiency, as argued by James Gallagher, or does it create a lack of accountability and oversight, as argued by Timothy Burke? Use evidence from the hearing to support your analysis.
Electronic vs. Physical Access: The HOA argued that providing electronic copies of records was a "courtesy" rather than a statutory requirement, as the statute only mentions making records available for "examination." Evaluate this stance in the context of modern administrative practices. Should "reasonably available" be interpreted to include digital formats?
The Dual Role of Director and Member: Analyze the ALJ's decision to separate requests made as a "Member" from those made as a "Board Member." How does this distinction affect a director's ability to perform their fiduciary duties if they are held to different standards of information access than the general membership?

IV. Glossary of Important Terms

A.R.S. § 33-1805: The Arizona Revised Statute that mandates the availability of planned community association records to its members.
Administrative Law Judge (ALJ): An independent official (in this case, Andrew Su Kawazaki and later Nedra-Su Kawasaki) who presides over hearings and issues decisions on contested matters arising from state regulation.
ADR (Alternative Dispute Resolution) Petition: A formal filing with the Department of Real Estate to resolve conflicts between homeowners and associations without a full court trial.
Bylaws: The internal rules that govern the administration of an association, including the powers and duties of the Board of Directors and the Managing Agent.
Fiduciary Responsibility: The legal obligation of board members to act in the best interests of the association and its members.
Managing Agent: An outside entity (such as Kinney Management Services/KMS) hired by the HOA Board to handle day-to-day operations, maintenance, and record retention.
Prevailing Party: The participant in a legal proceeding who "wins" on the core issues, often entitling them to the reimbursement of filing fees or other costs.
Redaction: The process of censoring or obscuring part of a text for legal or security purposes (e.g., hiding sensitive pricing or personal information in a contract).
Statutory Request: A formal demand for information based on the rights granted to an individual by state law.

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.

At a Glance	Details
Case No.	25F-H072-REL
Petitioner	Timothy Burke
Respondent	Cortessa Community Association
Core Statutory Reference	ARS § 33-1805 (Association Records; Applicability)

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."

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.
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.
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.
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.

Case Participants

Petitioner Side

Timothy A. Burke (Petitioner)
Cortessa Community Association
Homeowner and Board Treasurer
Rockwell Kelly (Witness)
Cortessa Community Association
Homeowner and association member
Dara Chavez (Witness)
Cortessa Community Association
Homeowner and association member

Respondent Side

Edith I. Rudder (Attorney)
CHDB LAW LLP
Attorney for Cortessa Community Association
Amber P. Li (Observing Attorney)
CHDB LAW LLP
James Gallagher (Board President)
Cortessa Community Association
Michael Swift (Community Manager)
Kinney Management Services
Community Manager for Cortessa Community Association
Morgan Swanson (Observing Attorney)
CHDB LAW LLP

Neutral Parties

Nedra-Su Kawasaki (Administrative Law Judge)
Office of Administrative Hearings