Case Summary
| Case ID | 17F-H1616006-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2017-01-09 |
| Administrative Law Judge | Tammy L. Eigenheer |
| Outcome | total |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $1,000.00 |
Parties & Counsel
| Petitioner | Richard A. DeBoer | Counsel | — |
|---|---|---|---|
| Respondent | Turtle Rock III Homeowners Association | Counsel | — |
Alleged Violations
A.R.S. § 33-1804(A)
Outcome Summary
The Administrative Law Judge deemed the Petitioner the prevailing party, finding that the Respondent HOA violated A.R.S. § 33-1804(A) by conducting votes via email. The HOA was ordered to comply with the statute, reimburse the Petitioner $500.00 for the filing fee, and pay a civil penalty of $1,000.00 to the Department of Real Estate.
Key Issues & Findings
Violation of Open Meeting Requirements
Petitioner alleged that the HOA board violated A.R.S. § 33-1804 by using email communications to vote on substantive issues (common area lighting installation and removal). The Tribunal concluded that the Board’s practice of taking action via email consensus violated A.R.S. § 33-1804(A), which requires meetings of the board of directors to be open to all members.
Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1804(A) in the future. Respondent must pay Petitioner his filing fee of $500.00. Respondent must pay a civil penalty of $1,000.00 to the Department of Real Estate.
Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $1,000.00
Disposition: petitioner_win
- A.R.S. § 33-1804(A)
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
Analytics Highlights
- A.R.S. § 33-1804(A)
- A.R.S. § 32-2199 et seq.
- A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
17F-H1616006-REL Decision – 538360.pdf
17F-H1616006-REL Decision – 539992.pdf
Briefing Document: DeBoer vs. Turtle Rock III Homeowners Association
Executive Summary
This document summarizes the findings and outcome of the legal dispute between homeowner Richard A. DeBoer and the Turtle Rock III Homeowners Association (HOA). The central issue was the HOA Board of Directors’ practice of conducting votes on non-emergency matters via email, which the petitioner alleged violated Arizona’s open meeting laws.
An Administrative Law Judge (ALJ) for the State of Arizona concluded that the HOA Board did violate state law (A.R.S. § 33-1804) by using email to approve the purchase of new street lights and the removal of existing fixtures, thereby circumventing requirements for open meetings accessible to all members. The Board’s defense, that it had relied on poor advice from its management company, was not sufficient to overcome the violation.
Consequently, Mr. DeBoer was declared the prevailing party. The HOA was ordered to cease this practice, pay a $1,000 civil penalty to the Arizona Department of Real Estate, and reimburse Mr. DeBoer for his $500 filing fee. The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a final administrative order.
Case Background
• Case Name: Richard A. DeBoer vs. Turtle Rock III Homeowners Association
• Case Numbers: 17F-H1616006-REL (Office of Administrative Hearings), HO17-16/006 (Department of Real Estate)
• Jurisdiction: The dispute was filed with the Arizona Department of Real Estate and heard by the Office of Administrative Hearings.
• Petitioner: Richard A. DeBoer, a homeowner.
• Respondent: Turtle Rock III Homeowners Association, located in Phoenix, Arizona.
Key Dates
August 23, 2016
Petition filed by Richard A. DeBoer.
December 19, 2016
Hearing held before the Office of Administrative Hearings.
January 9, 2017
Administrative Law Judge Decision issued.
January 12, 2017
Final Order issued by the Department of Real Estate Commissioner.
January 13, 2017
Compliance letter sent to the HOA by the Department of Real Estate.
February 11, 2017
Deadline for HOA to show proof of payment for petitioner’s filing fee.
March 13, 2017
Deadline for HOA to pay the civil penalty.
Petitioner’s Allegations
Richard A. DeBoer’s petition, filed on August 23, 2016, alleged that the Turtle Rock III HOA Board of Directors had a “common practice” of conducting unnoticed email meetings to vote on non-emergency matters. This practice was alleged to be in violation of both Arizona state law and the HOA’s own bylaws.
• March 2016: The Board conducted an email vote to approve the purchase and installation of four high-mast street lights in the common area.
• April 2016: The Board conducted an email vote to approve the removal and sale or disposal of fourteen large, iconic, architectural light fixtures from the common areas.
• The email meetings were not open to all association members.
• Members were denied the opportunity to attend and speak before the Board took formal action.
• The subject matter did not meet the criteria for a closed meeting.
• The Board failed to provide members with at least 48 hours’ advance notice.
• The meetings did not qualify as emergency meetings.
• Proper notices and agendas containing information “reasonably necessary to inform the members” were not provided.
• The petitioner alleged the actions were contrary to Turtle Rock III Bylaws, Division VI, Item 2.i, which incorporates Robert’s Rules of Order.
• Specifically, the email meetings were conducted without authorization in the bylaws and failed to provide for “a single official gathering in one room or area.”
• The format lacked the required “conditions of opportunity for simultaneous aural communication among participating members.”
Respondent’s Defense and Testimony
The Turtle Rock III HOA initially filed an answer denying all allegations made in the petition.
During the hearing on December 19, 2016, the following testimony was provided on behalf of the HOA:
• Verl Curtiss (Board President) and Steve Pilcher (Board Treasurer) both acknowledged that the email votes regarding the lighting had occurred.
• Their defense centered on the claim that they had been advised by their management company and manager that their actions were not in violation of Arizona statutes or the HOA’s bylaws.
• Mr. Pilcher testified that they believed they had received “good advice.”
Legal Findings and Conclusion
The Administrative Law Judge (ALJ), Tammy L. Eigenheer, determined that the petitioner bore the burden of proving the violation by a “preponderance of the evidence.”
The decision focused on A.R.S. § 33-1804(A), which states:
“Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors… are open to all members of the association… and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”
Based on the evidence and testimony, including the Board’s admission that email votes took place, the ALJ issued a clear conclusion:
“This Tribunal concludes that the Board’s prior practice of taking action in the absence of a meeting by obtaining unanimous written consent of the Board’s members via email violated the charged provisions of A.R.S. § 33-1804(A).”
Final Order and Penalties
The ALJ’s Recommended Order was officially accepted and adopted as a Final Order by Judy Lowe, the Commissioner of the Arizona Department of Real Estate, on January 12, 2017. The HOA was ordered to undertake the following actions:
1. Cease and Desist: The Respondent must comply with all applicable provisions of A.R.S. § 33-1804(A) in the future.
2. Fee Reimbursement: The Respondent must pay the Petitioner, Richard A. DeBoer, his filing fee of $500.00 within thirty (30) days of the Order.
3. Civil Penalty: The Respondent must pay a civil penalty of $1,000.00 to the Department of Real Estate within sixty (60) days of the Order.
The Final Order constituted a final administrative action, subject to appeal or a motion for rehearing within 30 days.
Key Parties and Officials
Name/Entity
Richard A. DeBoer
Petitioner / Homeowner
Turtle Rock III Homeowners Association
Respondent
Verl Curtiss
President, Respondent’s Board of Directors
Steve Pilcher
Treasurer, Respondent’s Board of Directors
Goodman Law Group
Respondent’s Representative
Tammy L. Eigenheer
Administrative Law Judge
Office of Administrative Hearings
Adjudicating Body
Arizona Department of Real Estate
Regulatory Agency / Jurisdiction for HOA Disputes
Judy Lowe
Commissioner, Department of Real Estate
Abby Hansen
HOA Dispute Coordinator, Department of Real Estate
Study Guide: DeBoer v. Turtle Rock III Homeowners Association
This study guide provides a comprehensive review of the administrative case Richard A. DeBoer v. Turtle Rock III Homeowners Association, case number 17F-H1616006-REL. It covers the key facts, legal arguments, judicial findings, and final orders as detailed in the provided legal documents.
Quiz: Short-Answer Questions
Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.
1. Who were the Petitioner and Respondent in this case, and what were their respective roles?
2. What specific actions taken by the Turtle Rock III HOA Board of Directors in March and April 2016 were at the center of the dispute?
3. What key Arizona statute did the Petitioner allege the Respondent had violated, and what is the primary requirement of that law?
4. In addition to the state statute, what internal governing document and procedural rules did the Petitioner claim the HOA’s actions violated?
5. What was the defense offered by the HOA’s representatives, Verl Curtiss and Steve Pilcher, during the hearing?
6. What was the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
7. What was the ultimate conclusion of the Administrative Law Judge regarding the HOA’s practice of conducting votes via email?
8. What two distinct financial penalties were imposed on the Turtle Rock III Homeowners Association in the final order?
9. Which state agency has jurisdiction over disputes between homeowners and condominium associations in Arizona and formally adopted the Judge’s decision?
10. What specific, non-financial order was given to the Respondent to ensure future adherence to the law?
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Answer Key
1. The Petitioner was Richard A. DeBoer, a homeowner who filed the complaint. The Respondent was the Turtle Rock III Homeowners Association (HOA), the governing body of the community, which was accused of violating state law and its own bylaws.
2. In March 2016, the Board conducted an e-mail vote to purchase and install four high-mast street lights. In April 2016, the board held another e-mail vote to remove and sell or give away fourteen large, architectural light fixtures from the common areas.
3. The Petitioner alleged a violation of A.R.S. § 33-1804. This statute’s primary requirement is that all meetings of an HOA’s board of directors must be open to all members of the association, who must be permitted to attend and speak.
4. The Petitioner claimed the e-mail votes also violated the Turtle Rock III Bylaws, specifically Division VI, Item 2.i. This section references Robert’s Rules of Order (RONR), which requires a “single official gathering” and “simultaneous aural communication” for meetings.
5. Verl Curtiss (President) and Steve Pilcher (Treasurer) testified that their management company and manager had advised them that they were not in violation of any statutes or bylaws. They did not deny that the e-mail votes had occurred.
6. The Petitioner had the burden of proving the violation by a “preponderance of the evidence.” This standard is defined as evidence of greater weight or more convincing than opposing evidence, showing the fact is more probable than not.
7. The Administrative Law Judge concluded that the Board’s practice of taking action through unanimous written consent via email, in the absence of a meeting, violated the open meeting provisions of A.R.S. § 33-1804(A).
8. The HOA was ordered to pay the Petitioner’s filing fee of $500.00 directly to him. Additionally, the HOA was ordered to pay a civil penalty of $1,000.00 to the Arizona Department of Real Estate.
9. The Arizona Department of Real Estate (ADRE) has jurisdiction to hear these disputes. The Commissioner of the ADRE formally accepted and adopted the Administrative Law Judge’s decision, making it a Final Order.
10. The Respondent was ordered to comply with the applicable provisions of A.R.S. § 33-1804(A) in the future. This directive mandates that the HOA cease its practice of holding votes outside of open meetings.
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Essay Questions
Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a detailed response for each question, drawing evidence and examples from the source documents.
1. Analyze the Petitioner’s complaint, detailing both the statutory violations (A.R.S. § 33-1804) and the alleged bylaw infractions (Robert’s Rules of Order). Explain how these two lines of argument reinforced each other.
2. Discuss the legal concept of “preponderance of the evidence” as defined in the case documents. Explain how the testimony of the HOA’s own representatives, Verl Curtiss and Steve Pilcher, helped the Petitioner meet this burden of proof, despite their intentions.
3. Examine the final order issued by the Administrative Law Judge and adopted by the Commissioner. Detail the specific remedies imposed and explain the purpose of each component (compliance, restitution, and civil penalty).
4. Based on the arguments presented, evaluate the significance of Arizona’s open meeting laws (A.R.S. § 33-1804) for homeowners in a planned community. Why is it critical for board decisions, such as those concerning common area fixtures, to be made in an open forum?
5. Trace the timeline of the case from the initial filing of the petition on August 23, 2016, to the issuance of the compliance letter from the Department of Real Estate on January 13, 2017. Identify the key milestones and explain the function of each step in the administrative hearing process.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (Tammy L. Eigenheer) who presides over administrative hearings, weighs evidence, and makes legal rulings and recommendations.
A.R.S. § 33-1804
The Arizona Revised Statute cited in the case that mandates all HOA board meetings be open to all association members, allowing them to attend and speak.
Bylaws
The internal rules governing the operation of an organization. In this case, the Turtle Rock III Bylaws (Division VI, Item 2.i) were cited as being violated.
Civil Penalty
A monetary fine levied by a government agency for a violation of law, distinct from criminal punishment. The HOA was ordered to pay a $1,000.00 civil penalty.
Common Area
Property within a planned community owned and maintained by the homeowners association for the use and benefit of all members. The light fixtures in the case were located in the common areas.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate had jurisdiction to hear the dispute under A.R.S. § 32-2199 et seq.
Office of Administrative Hearings
The state agency that conducts formal hearings for disputes involving other state agencies, providing an impartial forum for adjudication.
Petitioner
The party who files a petition or brings an action in a legal proceeding. In this case, the Petitioner was homeowner Richard A. DeBoer.
Preponderance of the Evidence
The standard of proof required in this case, defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Prevailing Party
The party in a legal dispute who is found to have won the case. Richard A. DeBoer was deemed the prevailing party.
Respondent
The party against whom a petition is filed or an action is brought. In this case, the Respondent was the Turtle Rock III Homeowners Association.
Robert’s Rules of Order (RONR)
A manual of parliamentary procedure that governs most meetings of deliberative assemblies. The Petitioner argued that the HOA’s e-mail votes violated RONR’s requirement for simultaneous aural communication.
Your HOA Board’s Emails Might Be Illegal Meetings: How One Homeowner Fought Back and Won
Introduction: The Hidden Risks of HOA Board Emails
Do you ever wonder how your Homeowners Association (HOA) board really makes its decisions? For many residents, board operations can feel like a black box. While official meetings are announced, it’s easy to assume that much of the groundwork happens behind the scenes. But what if those seemingly harmless email chains among board members are more than just casual discussions? What if they are, in fact, illegal meetings?
A powerful legal case from Arizona, involving a homeowner named Richard A. DeBoer and the Turtle Rock III Homeowners Association, provides a powerful lesson for HOA members nationwide. This post breaks down the four most impactful takeaways from that case, showing how one homeowner successfully held his board accountable for its lack of transparency.
Takeaway 1: “Convenient” Email Votes Can Be Illegal Secret Meetings
An Email Vote Isn’t Just an Email—It’s a Meeting.
In 2016, the Turtle Rock III HOA board made two significant decisions affecting community property. In March, they conducted an email vote to purchase and install four high-mast street lights. In April, they conducted another email vote to remove and sell, or give away, fourteen “large, iconic, architectural, light-fixtures” from the common areas.
The petitioner, Richard A. DeBoer, argued that this practice was a direct violation of Arizona’s open meeting law for HOAs, which states:
“Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association or any person designated by a member in writing as the member’s representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. . .” — A.R.S. § 33-1804(A)
The Administrative Law Judge agreed with the homeowner, concluding that the board’s practice of taking action via email “violated the charged provisions of A.R.S. § 33-1804(A).” The case record reveals the board’s actions failed on multiple fronts. Specifically, their email votes violated the law because they were conducted in a way that:
• Were not open to all members: The decisions were made in a private digital space, excluding the very residents they affected.
• Denied members the right to attend and speak: Homeowners were given no opportunity to hear the deliberations or provide input before the board took formal action.
• Failed to provide 48-hour notice: Members were not given the legally required advance notice of the “meetings” where votes were cast.
• Lacked proper agendas: No agendas were provided to inform members of the matters to be discussed or decided.
• Did not qualify as emergency meetings: The subject matter did not meet the stringent requirements for an emergency session that might bypass standard notice rules.
This ruling affirms a crucial principle: transparency laws apply to modern forms of communication. Boards cannot use technology to circumvent their legal obligation to conduct business in the open.
Takeaway 2: “Bad Advice” Is Not a Valid Legal Defense
“But Our Manager Said It Was OK” Won’t Hold Up in Court.
During the hearing, the HOA board did not deny that the email votes took place. Instead, they offered a defense: they were just following advice.
Board President Verl Curtiss and Treasurer Steve Pilcher both testified that their management company and its manager had told them they were not in violation of the law. Mr. Pilcher stated that they believed they had received “good advice.”
Despite this testimony, the judge ruled against the HOA. This outcome is a stark reminder that reliance on bad advice is not a legal shield. Board members have a fiduciary duty to the community they serve, and a core part of that duty is understanding and adhering to the laws governing their association. This responsibility cannot be outsourced to a management company. Ultimately, the board—not its vendors—is accountable for upholding the principles of open governance.
Takeaway 3: A Single Homeowner Can Force an Entire Board to Comply
One Determined Homeowner Can Win Against the Whole Association.
Perhaps the most empowering aspect of this case is who brought it forward. The petition was not filed by a large group of angry residents or a high-powered law firm. It was initiated by a single person: Richard A. DeBoer.
Mr. DeBoer filed the petition with the Arizona Department of Real Estate on August 23, 2016. When the hearing took place on December 19, 2016, he “appeared on his own behalf.”
In the end, the court’s order officially deemed Mr. DeBoer the “prevailing party.” This victory demonstrates that the legal framework provides a viable path for individual homeowners to hold their boards accountable. It shows that one person with a clear understanding of the law and the determination to see it enforced can successfully challenge an entire association and win.
Takeaway 4: Cutting Corners on Transparency Carries a Financial Cost
Ignoring the Law Comes With a Price Tag.
Violating open meeting laws isn’t just a procedural error; it has direct financial consequences. As a result of the ruling, the Turtle Rock III HOA was ordered to pay for its actions. The financial penalties included:
• The HOA was ordered to pay back the petitioner’s $500.00 filing fee.
• The HOA was ordered to pay a $1,000.00 civil penalty to the Arizona Department of Real Estate.
The board’s decision to cut corners on transparency cost their neighbors—the very people they were elected to serve—a total of $1,500. This money, which came directly from the association’s funds, could have gone toward community maintenance or improvements. Instead, it was spent paying for a legal and procedural failure. This case proves that when a board fails to follow the law, the entire community pays the price.
Conclusion: Transparency Is Not Optional
The case of DeBoer v. Turtle Rock III Homeowners Association delivers a clear and powerful message: HOA boards must conduct business in the open, and homeowners have both the right and the ability to enforce those transparency laws. Email votes and other back-channel communications that exclude members from the decision-making process are not just bad practice—they can be illegal.
This case was decided in Arizona, but the principle of transparency is universal. Does your HOA board’s communication meet the standard of the law, and what would you do if you discovered it didn’t?
Case Participants
Petitioner Side
- Richard A. DeBoer (petitioner)
Appeared on his own behalf
Respondent Side
- Verl Curtiss (board member)
Turtle Rock III Homeowners Association
President; Appeared on behalf of Respondent; witness - Steven Pilcher (board member)
Turtle Rock III Homeowners Association
Treasurer; Appeared on behalf of Respondent; witness
Neutral Parties
- Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings - Judy Lowe (Commissioner)
Arizona Department of Real Estate - Abby Hansen (HOA Coordinator)
Business Services Division (ADRE)
