Case Summary
| Case ID | 22F-H2221021-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-02-18 |
| Administrative Law Judge | Jenna Clark |
| Outcome | The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Dean A Yelenik | Counsel | — |
|---|---|---|---|
| Respondent | Meridian Condominiums Homeowners Association | Counsel | Nick Eicher, Esq. |
Alleged Violations
ARIZ. REV. STAT. §§ 33-1243(B) and Community Bylaws 3.1 and 3.6
Outcome Summary
The ALJ found the Board acted within its lawful authority because the governing documents and statute cited did not explicitly prohibit a Board Member from resigning and immediately being appointed to fill an unexpired term to elongate their service, and Petitioner failed to meet the burden of proof.
Why this result: Petitioner failed to prove by a preponderance of the evidence that the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6. The Tribunal found the Board’s action, though potentially questionable, was not unlawful.
Key Issues & Findings
Whether the Association violated ARS § 33-1243(B) and Bylaws 3.1 and 3.6 by appointing an existing board member to fill a vacancy, effectively extending her term.
The Board appointed existing Board member Joan Robley to fill the unexpired term of Board Member Gallu (expiring Jan 2023) immediately after she resigned her own seat (expiring Jan 2021), which Petitioner alleged violated governing documents by extending her term and not genuinely filling a vacancy.
Orders: Petitioner's petition was denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- ARIZ. REV. STAT. § 33-1243(B)
- Community Bylaws 3.1
- Community Bylaws 3.6
- ARIZ. REV. STAT. § 32-2199.05
Analytics Highlights
- ARIZ. REV. STAT. § 33-1243(B)
- Community Bylaws 3.1
- Community Bylaws 3.6
- ARIZ. REV. STAT. § 32-2102
- ARIZ. REV. STAT. § 32-2199 et seq.
- ARIZ. REV. STAT. § 32-2199.05
- 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.
- ARIZ. ADMIN. CODE R2-19-119
- Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
- MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
- BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
22F-H2221021-REL Decision – 948752.pdf
22F-H2221021-REL Decision – 948752.pdf
This matter was an administrative hearing held on February 1, 2022, before Administrative Law Judge (ALJ) Jenna Clark, regarding a dispute between Petitioner Arthur Dean Yelenik and Respondent Meridian Condominiums Homeowners Association (the Association). Petitioner alleged the Association violated Arizona Revised Statute (ARS) § 33-1243(B) and Community Bylaws Sections 3.1 and 3.6.
Key Facts
The dispute centered on the Board of Directors' actions following the resignation of Board Member Chris Gallu in September 2020, whose term had approximately two years and three months remaining. At an October 2020 Board meeting, the Board filled this vacancy by appointing existing Board Member Joan Robley. To facilitate this, Ms. Robley resigned from her existing seat (which had only three months remaining before the January 2021 election) and was immediately appointed to Mr. Gallu’s unexpired term, effectively extending her service by two years and avoiding scheduled re-election by the homeowners. The Board operated with four members for approximately three months until the subsequent annual meeting.
Main Issues and Legal Arguments
The crux of the inquiry was whether a Board Member may resign and be immediately appointed to fill a Board vacancy on the same day, thereby elongating their term of service.
Petitioner's Argument:
The Petitioner argued that the Board's action was an illegitimate "board term swap," not a valid process for filling a vacancy.
- Bylaw 3.1 Violation: Bylaw 3.1 requires the Board to be an odd number (historically five members). Petitioner argued that since Ms. Robley was already a member, her reappointment did not increase the total number of board members, thus failing to “fill a vacancy in the board” and rendering Bylaw 3.1 meaningless.
- ARS § 33-1243(B) Violation: This statute prohibits the Board from electing members or "determin[ing] the terms of office of the board of director members". Petitioner argued the Board violated this by determining Ms. Robley's term of office (changing it from 3 months to over 2 years).
Respondent's Argument:
The Association argued it acted within its lawful authority, prioritizing the Association's best interest by retaining Ms. Robley's 15 years of continuous experience, particularly since three members were "freshmen".
- Bylaw 3.6 Authority: Bylaw 3.6 grants the board the authority to fill vacancies. Neither the Bylaws nor the statute explicitly prohibit appointing a former or existing board member to fill a vacancy. The sole requisite for service is unit ownership, which Ms. Robley met.
- Quorum Maintained: The Board maintained a quorum (three members out of five positions) at all relevant times.
- Statute Compliance: The Board did not violate ARS § 33-1243(B) because the terms of office (three-year staggered terms) were set by the membership in 2005, not by the Board as a matter of general policy. The statute allows the board to "fill vacancies in its membership for the unexpired portion of any term".
Outcome and Final Decision
The ALJ found that the Petitioner did not sustain his burden of proof by a preponderance of the evidence. The Tribunal concluded that the Board acted within its lawful authority. The decision stated that neither Bylaw Section 3.6 nor ARS § 33-1243(B) implicitly or explicitly prohibit the occurrence. The ALJ also rejected the argument that there is a presumption of "new blood" required for appointments. Petitioner's petition was therefore denied.
Questions
Question
Can a board member resign and immediately be appointed to a different vacancy to get a longer term?
Short Answer
Yes, unless the governing documents specifically prohibit it.
Detailed Answer
The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.
Alj Quote
Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.
Legal Basis
A.R.S. § 33-1243(B); Bylaws Section 3.6
Topic Tags
- Board Vacancies
- Term Limits
- Board Appointments
Question
Does the HOA board have to choose a new person ('new blood') when filling a vacancy?
Short Answer
No, the board is not required to select a new person.
Detailed Answer
There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.
Alj Quote
There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.
Legal Basis
Bylaws Interpretation
Topic Tags
- Board Qualifications
- Vacancies
Question
Does the board have the authority to fill vacancies without holding a general membership election?
Short Answer
Yes, the board generally has the statutory authority to appoint members to fill vacancies.
Detailed Answer
Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.
Alj Quote
The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'
Legal Basis
A.R.S. § 33-1243(B)
Topic Tags
- Elections
- Board Authority
Question
Is a board decision illegal just because it is 'questionable' or unpopular?
Short Answer
No, a questionable choice is not necessarily unlawful.
Detailed Answer
The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.
Alj Quote
Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.
Legal Basis
Board Discretion
Topic Tags
- Board Conduct
- Decision Making
Question
What burden of proof does a homeowner have when challenging an HOA in a hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- Legal Standards
- Hearings
Question
Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?
Short Answer
Yes, the OAH tribunal can interpret the contract between the parties.
Detailed Answer
The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.
Alj Quote
OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.
Legal Basis
A.R.S. § 32-2199 et seq.
Topic Tags
- Jurisdiction
- Contract Interpretation
Question
If I pay for a single-issue petition, can the judge rule on other related issues?
Short Answer
No, the tribunal is limited to the specific issue paid for.
Detailed Answer
The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.
Legal Basis
A.R.S. § 32-2199.05
Topic Tags
- Procedure
- Fees
Case
- Docket No
- 22F-H2221021-REL
- Case Title
- Dean A Yelenik vs. Meridian Condominiums Homeowners Association
- Decision Date
- 2022-02-18
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Can a board member resign and immediately be appointed to a different vacancy to get a longer term?
Short Answer
Yes, unless the governing documents specifically prohibit it.
Detailed Answer
The ALJ ruled that a board member can resign their current seat and be appointed to a vacancy with a longer unexpired term. As long as the member is eligible (e.g., a unit owner) and the bylaws or statutes do not explicitly forbid this practice, it is considered a lawful exercise of the board's authority to fill vacancies.
Alj Quote
Neither Bylaws Section 3.6 nor ARIZ. REV. STAT. §§ 33-1243(B) implicitly or explicitly prohibit what occurred.
Legal Basis
A.R.S. § 33-1243(B); Bylaws Section 3.6
Topic Tags
- Board Vacancies
- Term Limits
- Board Appointments
Question
Does the HOA board have to choose a new person ('new blood') when filling a vacancy?
Short Answer
No, the board is not required to select a new person.
Detailed Answer
There is no legal requirement for a board to seek out new candidates or 'new blood' when filling a vacancy. The board may appoint a former or resigning director to a vacant seat as long as they meet the basic qualifications, such as being a unit owner.
Alj Quote
There is no presumption of 'new blood' as Petitioner argued. The sole requisite to fill the vacancy was that the choice be limited to unit owners, which Ms. Robley is.
Legal Basis
Bylaws Interpretation
Topic Tags
- Board Qualifications
- Vacancies
Question
Does the board have the authority to fill vacancies without holding a general membership election?
Short Answer
Yes, the board generally has the statutory authority to appoint members to fill vacancies.
Detailed Answer
Arizona statute allows the board of directors to fill vacancies in its membership for the remainder of an unexpired term without holding a full election, provided the bylaws align with this authority.
Alj Quote
The statute does note, however, that the board of directors may 'fill vacancies in its membership for the unexpired portion of any term.'
Legal Basis
A.R.S. § 33-1243(B)
Topic Tags
- Elections
- Board Authority
Question
Is a board decision illegal just because it is 'questionable' or unpopular?
Short Answer
No, a questionable choice is not necessarily unlawful.
Detailed Answer
The ALJ clarified that even if a board makes a decision that is questionable or if they could have made a different determination, the decision is not unlawful unless it specifically violates the statutes or governing documents.
Alj Quote
Just because the Association could have made any number of different determinations after Mr. Gallu resigned, does not mean that its questionable choice to appoint Ms. Robley to his seat was unlawful.
Legal Basis
Board Discretion
Topic Tags
- Board Conduct
- Decision Making
Question
What burden of proof does a homeowner have when challenging an HOA in a hearing?
Short Answer
The homeowner must prove the violation by a 'preponderance of the evidence.'
Detailed Answer
The petitioner (homeowner) is responsible for providing enough evidence to convince the judge that their claim is more likely true than not. If they fail to meet this standard, the petition will be denied.
Alj Quote
Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- Legal Standards
- Hearings
Question
Does the Administrative Law Judge have the power to interpret the HOA's CC&Rs and Bylaws?
Short Answer
Yes, the OAH tribunal can interpret the contract between the parties.
Detailed Answer
The Office of Administrative Hearings (OAH) has the specific authority to hear contested cases and interpret the contract (the CC&Rs and Bylaws) that exists between the homeowner and the association.
Alj Quote
OAH has the authority to hear and decide the contested case at bar. OAH has the authority to interpret the contract between the parties.
Legal Basis
A.R.S. § 32-2199 et seq.
Topic Tags
- Jurisdiction
- Contract Interpretation
Question
If I pay for a single-issue petition, can the judge rule on other related issues?
Short Answer
No, the tribunal is limited to the specific issue paid for.
Detailed Answer
The tribunal's scope is limited to the specific issue(s) for which the filing fee was paid. They cannot adjudicate outside that scope even if related violations are alleged.
Alj Quote
Because Petitioner only paid for the adjudication of one (1) issue, this Tribunal may only determine whether Respondent committed a violation… based on the same event or series of alleged conduct.
Legal Basis
A.R.S. § 32-2199.05
Topic Tags
- Procedure
- Fees
Case
- Docket No
- 22F-H2221021-REL
- Case Title
- Dean A Yelenik vs. Meridian Condominiums Homeowners Association
- Decision Date
- 2022-02-18
- Alj Name
- Jenna Clark
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Arthur Dean Yelenik (petitioner)
Also goes by Dean Yelenik - Kristen Terry Beloo (homeowner/past board president)
Part of petitioner's working group; Past president (6 years) - Kathleen Moles (homeowner/past board president)
Part of petitioner's working group; Past president (3 years) - David Moles (homeowner)
Part of petitioner's working group
Respondent Side
- Eadie Rudder (respondent attorney)
- Nick Eicher (respondent attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP - Margo McInnis (board president/witness)
Meridian Condominiums Homeowners Association
Testified for Respondent - Joan Robley (board member)
Meridian Condominiums Homeowners Association
Appointment subject of dispute - Annette (property manager)
Century Management
Referred to as Community Manager - Quinton Phillips (HOA attorney)
Attorney for the Association
Neutral Parties
- Jenna Clark (ALJ)
OAH - Louis Dettorre (Commissioner)
Arizona Department of Real Estate - Dan Gardner (HOA Coordinator)
Arizona Department of Real Estate
Other Participants
- Chris Gallu (former board member)
Meridian Condominiums Homeowners Association
Resignation created the contested vacancy; referred to as Mr. Beloo/Blue in transcript - Fran McGovern (board member)
Meridian Condominiums Homeowners Association
Elected to Robley's former seat in Jan 2021