Tag Archives: Right to Speak

This summary details the Administrative Law Judge (ALJ) Decision in the case of Ronald Borruso, Petitioner, vs. Sunland Village East Association, Respondent (No. 21F-H2121062-REL), heard on September 3, 2021. The Petitioner, Ronald Borruso, alleged that the Association violated its Bylaws and specific provisions of ARIZ. REV. STAT. section 33-1804.

Key Facts and Legal Standard

The Department of Real Estate had jurisdiction over the matter. The Petitioner bore the burden of proving the alleged violations occurred by a preponderance of the evidence. Borruso refined his allegations to two main issues, both centering on the violation of association meeting requirements under ARIZ. REV. STAT. § 33-1804(A) and (C).

Main Issues and Arguments

Issue 1: Member Participation at the May 27, 2021 Special Meeting

• Petitioner's Claim: Borruso alleged that during a special meeting concerning a recall petition, the Board denied members the right to speak at an appropriate time during proceedings, violating § 33-1804(A). He argued the meeting was improperly divided into a "closed" session where members could not offer substantive comments, followed by an "Open Session Q & A" after adjournment.
• Association's Argument: The Association maintained there was only one meeting, and it was not a violation to restrict members’ comments until after the Board provided its statements. They argued they used the term "closed" inartfully, noting that members were allowed to attend the entire 3-hour meeting, and ample opportunity was provided for comments during the Q & A session (lasting about 90 minutes).
• Legal Point: ARIZ. REV. STAT. section 33-1804(A) permits members to attend and speak at an appropriate time during deliberations, and mandates they speak once after the Board discusses an agenda item but before formal action. The ALJ noted that legally, a "closed" meeting refers to an executive session, which the Board did not conduct.

Issue 2: Unnoticed Meeting to Approve Operations Manager Qualifications

• Petitioner's Claim: Borruso alleged the Board held un-noticed meetings to write and approve job qualifications for an Operations Manager, violating sections 33-1804(A) and (C). His primary evidence was a former Board President, Ms. Haynie, confirming in a May 6, 2021 meeting that the Board had written and approved the job description.
• Association's Argument: Current Board members testified credibly that Ms. Haynie was wrong and that the Board had never met or voted on the job description. The description posted was similar to a previous one, and Ms. Haynie had allegedly prepared and posted it without Board approval.

Outcome and Final Decision

The Administrative Law Judge concluded that Mr. Borruso failed to meet the required standard of proof (preponderance of the evidence) on both issues.

1. Regarding the May 27th Meeting: The Petitioner did not prove a violation of § 33-1804(A). Although the Board was not precise in its terminology, members were allowed to attend the entire meeting, and the evidence showed it was a single meeting where members spoke after the Board's presentation.
2. Regarding the Job Qualifications: The Petitioner failed to prove that an un-noticed meeting occurred, as the credible testimony indicated that the former President had been mistaken about the Board’s approval. Therefore, there was no violation of sections 33-1804(A) and (C).

The petition was dismissed.

Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.

The critical takeaways from the decision are as follows:

• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.

• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.

• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.

• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.

Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.

I. Case Overview

This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.

• Case Number: 20F-H2020061-REL

• Presiding Judge: Administrative Law Judge Jenna Clark

• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)

• Respondent: Coronado Ranch Community Association (HOA)

• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.

II. Petitioner’s Allegations

On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:

1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.

2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).

3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.

4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.

III. Factual Chronology and Key Evidence

The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.

Feb. 20, 2020

The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.

Mar. 12, 2020

The Association mails election ballots to all Members.

Mar. 19, 2020

Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.

~Mar. 25, 2020

The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.

Mar. 25 – Apr. 1

The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.

Mar. 30, 2020

Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.

Apr. 1, 2020

Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.

Apr. 2, 2020

The Annual Meeting is held via ClickMeeting.
• President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting.
• A quorum is achieved based on attendees and absentee ballots.
• An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting.
• The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting.
• At least 26 other Members successfully use the chat feature.

IV. Analysis of Key Issues and Legal Conclusions

The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.

A. Meeting Notice and Venue Change

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).

• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.

• Supporting Evidence:

◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.

◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”

◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.

B. Right to Speak

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).

• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.

• Supporting Evidence:

◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.

◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”

◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”

C. Conduct of Meeting

• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).

• Finding: The petition was denied on this point. The meeting was lawfully conducted.

• Supporting Evidence:

◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.

◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”

D. Board of Directors Election

• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).

• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”

• Supporting Evidence:

◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.

◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.

◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”

V. Final Order and Disposition

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.

• Order: “IT IS ORDERED that Petitioner’s petition be denied.”

• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”

• Date of Order: The decision was issued on September 3, 2020.

Briefing Document: Glover v. Foothills Community Association (Case No. 19F-H1919046-REL)

Executive Summary

This document summarizes the Administrative Law Judge Decision in the case of Vicky Glover versus the Foothills Community Association (FCA), where the petitioner’s claims were denied. The petitioner alleged that the FCA’s Design Review Committee (DRC) violated Arizona’s open meeting laws (A.R.S. § 33-1804) on two fronts: first, by conducting unannounced “email meetings” to vote on non-emergency matters, and second, by preventing members from speaking at appropriate times during regularly scheduled DRC meetings.

The Administrative Law Judge (ALJ), Tammy L. Eigenheer, concluded that the petitioner failed to prove any statutory violation. The decision rested on a strict textual interpretation of A.R.S. § 33-1804. Regarding speaking rights, the ALJ determined that while members have a right to speak at an “appropriate time” in committee meetings, the more specific right to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings. The judge found it was reasonable for the DRC to rule that a member speaking on another member’s application was not an “appropriate time.”

Concerning the email communications, the ALJ ruled that they do not constitute “regularly scheduled committee meetings” as defined by the statute. Because the email discussions and decisions did not occur at a set weekly, monthly, or quarterly time, they are not subject to the open meeting requirements. The general state policy favoring open meetings was found to be subordinate to the specific statutory language. The petition was therefore denied in its entirety.

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Case Overview

This case involved a dispute between a homeowner and a homeowners association regarding the application of Arizona’s open meeting laws to a committee of the association.

Name / Entity

Representation / Title

Petitioner

Vicky Glover

Appeared on her own behalf

Respondent

Foothills Community Association (FCA)

B. Austin Baillio (Maxwell & Morgan, P.C.)

Adjudicator

Tammy L. Eigenheer

Administrative Law Judge

Jurisdiction

Office of Administrative Hearings

Phoenix, Arizona

Case Timeline

• December 13, 2018 & January 9, 2019: Petitioner attends and records DRC meetings where the alleged violations occurred.

• January 23, 2019: Vicky Glover files a petition with the Arizona Department of Real Estate.

• January 28, 2019: The Department issues a notice to the FCA regarding the petition.

• May 10, 2019: An administrative hearing is held.

• May 30, 2019: The Administrative Law Judge issues the final decision.

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Petitioner’s Allegations

The petitioner, Vicky Glover, alleged that the Foothills Community Association violated Arizona Revised Statutes (A.R.S.) § 33-1804 in two specific ways:

1. Improper Email Meetings: The FCA’s Design Review Committee (DRC) held unannounced meetings via email to vote on non-emergency matters, which should have been handled in open, public meetings.

2. Denial of Speaking Rights: The DRC refused to allow community members, including the petitioner, to speak at an appropriate time during its regularly scheduled meetings, specifically when she wished to speak on other members’ pending requests.

Key Factual Findings

The facts underlying the petition were not in dispute by the parties during the hearing. The key findings of fact established were:

• Organizational Structure:

◦ The FCA Board of Directors is comprised of seven members and meets on the fourth Wednesday of the month at 6:00 p.m.

◦ The Design Review Committee (DRC) is appointed by the Board, is comprised of five members (two of whom are also on the Board), and meets on the second Wednesday of the month at 2:00 p.m.

• Events at DRC Meetings:

◦ On December 13, 2018, and January 9, 2019, Vicky Glover attended and recorded DRC meetings.

◦ During these meetings, she was not permitted to speak on issues being discussed related to other members’ pending requests.

• Use of Email by the DRC:

◦ During meetings, DRC members mentioned that additional information for certain requests would be shared via email after the meeting.

◦ Based on this emailed information, DRC members would approve or deny the request.

◦ Decisions made via email between meetings were formally “ratified” at the subsequent DRC meeting.

◦ FCA Manager Pat Wontor testified, denying that the DRC took initial action via email, asserting instead that emails were only used to gather additional information on matters that had already been discussed in an open meeting.

• DRC Policies: A request submitted to the DRC is deemed approved if it is not denied within 60 days.

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Legal Analysis and Judge’s Conclusions

The Administrative Law Judge’s decision centered on a strict interpretation of the plain language of A.R.S. § 33-1804. The petitioner bore the burden of proving a violation by a preponderance of the evidence and failed to do so on both counts.

I. Member Speaking Rights at Committee Meetings

The judge analyzed the petitioner’s claim that she was wrongfully denied the right to speak at DRC meetings.

• Governing Statute: A.R.S. § 33-1804(A) states that at “any regularly scheduled committee meetings… all members… shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”

• ALJ’s Interpretation: The judge found a critical distinction within the statute’s text. A later clause specifies that “the board… shall permit a member… to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item.”

• Conclusion: The judge ruled that this specific right to speak on an item before a vote applies only to meetings of the Board of Directors, not to committee meetings. For committee meetings, the standard is the more general “appropriate time.” The ALJ concluded it was reasonable for the DRC to determine that having one member speak on another member’s private application was not an “appropriate time.” Therefore, the DRC’s refusal to allow the petitioner to speak did not violate the statute.

II. Email Deliberations and “Meetings”

The judge next addressed the claim that email communications constituted illegal, non-public meetings.

• Governing Statute: A.R.S. § 33-1804(A) mandates that open meeting rules apply to “regularly scheduled committee meetings.”

• ALJ’s Interpretation: The judge concluded that the email discussions, deliberations, and decisions among DRC members did not meet the definition of “regularly scheduled.” These communications did not occur at a set time on a recurring basis (e.g., weekly, monthly, quarterly). While they could be considered a form of meeting, they were not regularly scheduled ones.

• Effect of State Policy: The judge acknowledged the policy statement in A.R.S. § 33-1804(F), which expresses a legislative preference for open meetings. However, the judge ruled that this general policy “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

• Conclusion: Because the email communications were not regularly scheduled, they did not fall under the open meeting requirements of the statute, and no violation occurred.

Final Order and Implications

Based on the legal analysis, the Administrative Law Judge found that the petitioner did not establish any violation of A.R.S. § 33-1804.

• Final Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Next Steps: The decision is binding on the parties. A party may file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.