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THE  ALLEGORY  OF  THE  WIZARDS OF HOA-LAND

“Pay no attention to that man behind the curtain!”

The quote comes the classic film The Wizard of Oz. The Wizard of Oz tells the story of Dorothy (and her dog Toto) who is magically transported to the Land of Oz. Now, stuck in the Land of Oz she  is advised to see the Wizard of Oz as he may know of a way to send her home.  Speaking to the Wizard, who looks like a giant floating head, the floating head is exposed as just an illusion created by a middle-aged man hiding behind the curtain, who is the “real” Wizard. He attempts to distract them by asking them to ignore the man, saying “Pay no attention to that man behind the curtain.”  (View https://youtu.be/YWyCCJ6B2WE).

The ”Wizards of HOA-Land” are none other than the HOA boards of directors (BOD) who provide illusions of happiness, approval, and support by the majority of their members.  The BODs use propaganda statements — disinformation consisting of false, misleading, and half-truths —  videos, photos, testimonials, and coercion applied to non-believers in their message.

Speaking specifically in regard to my “Mgmt Case Study #1” subject, Arizona’s SCG, as a result of the BOD’s arrogance, its defensive posture using propaganda to create illusions of proper and righteous conduct, its silence on the crucial issues, and its continued violations of black-letter statutes and the governing documents, I’ve managed to pull away the “curtain” and expose the Wizards in action. The BOD’s response has been, in effect: Pay no attention to these criticisms and just believe in how we’ve made you all content with  SCG

The SCG BOD election  mockery

(In general, the legislators, the media, the HOA BODs and members need to step back and see the ugly forest through the trees — the claimed “isolated” incidents.)

And so the BOD, with some 30% of the votes already cast, continues to urge the members to vote.  Why?  Under SCG’s election procedure the winners are from the top 4 vote counts, and with more than 10% voting to avoid any quorum issues, why bother?  Would it really make a difference among 7 shades of gray candidates who, as I’ve pointed out elsewhere, have been carefully selected and controlled by the BOD with the result, no matter who won, of more of the same policies, attitudes, decisions, culture as before.  The independent voices of  the members have been denied.

A Committee for the Betterment of Sun City Grand  (CBSCG) is becoming a necessity for any hope of restoring member fundamental rights and freedoms.  The members must act!

What makes for an effective nonprofit  HOA board of directors?

(For the record, I am not a lawyer nor work for a lawyer and I am not providing legal advice or opinion.)

First and foremost, an HOA is  a chartered nonprofit corporation given authority to function as such under the AZ Constitution.   The association’s Governing Documents, an agreement between the HOA and the members, gives the HOA the authority and powers to function as the governing body of the subdivision.

As you are well aware, both nonprofit corporation law and the Governing Documents place the ultimate authority and responsibility for managing the HOA – in the true meaning of “managing” and not CAM — in the board of directors (BOD).  CAM keeps the HOA functioning smoothly delivering the services and providing for “groundskeeping.”  In order for the HOA to accomplish its mission and goals, which provide the necessary guidance and direction for performance, it is the BOD that must decide 2 important questions: What is our purpose?  What should it be?

What then makes for an effective BOD? To start at the beginning and get right to the point, my emphasis at this important juncture (Managing the Nonprofit Organization, Peter F. Drucker, p. 171-172, 1990),

“The board needs to know that it owns the organization. But it owns an organization not for its own sake — as a board — but for the sake of the mission which that  organization is to perform.”

“If you find that the board has become inflexible, you have to look for ways of renewing the board with fresh appointments. The more power is concentrated in a few people on a board, the more likely the situation will turn unhealthy.”

And this is where the BOD has failed the members!

As pointed out in earlier posts, “mgmt case study #1”, SCG’s continues to widely publish its nonsensical vision and mission statements providing no guidelines to act or of any value to measure effective performance. What we have witnessed is a BOD deciding on its own where to go and what to do, cleverly masked as fulfilling the wishes and desires of the members.  In actuality, all those meet the board, chats, Q &As, etc. allow for a presentation of grievances without binding the BOD to action.

There is no provision to require the BOD to hold a vote on a member’s proposed amendment to the governing documents as permitted by state law with respect to removing a director or all directors.  Or to nullify an act of the BOD.

Drucker continues with, “Ducking controversy or minimizing difficulty, snowing people with reports that are not realistic either about the quality of the programs . . . or whatever . . . that’s terrible leadership”

It’s well beyond time for a necessary change in attitude and culture before SCG descends into chaos. Adoption of a new approach, as recommended in A Plan toward Restructuring the HOA Model of Governance is needed, today!

HOAs against protected member speech on social media

In contrast to the authoritative evidence supporting free speech for HOA members criticizing their BODs, the Tinnelly Law firm blog states up front in big letters, “HOA LAWYER BLOG.”  As for the content, the following quote sums up the view of the Tinnellys.

“The lack of regulation on social media communications can cause neighborhood tensions and smear the reputation of a community, causing a negative effect on property values.  This has led many homeowners associations to develop protocols and guidelines with regard to social media. “

(Some research shows Tinnelly is solid CAI with the owners, Richard and Stephen Tinnelly as members, as well as Director Acosta and article attribution to lawyer Kim.)

Read the full 4-page paper at social media free speech

Can HOA members expect justice in Arizona courts?

“HOA members in Arizona should not expect justice from the courts”

If you are a member of an Arizona HOA/condo, or soon plan to be one, you should pay heed to the above quote made in response to the Arizona Supreme Court’s denial to hear the Bendt appeal petition for review.[i]  In my Commentary, trying to understand the rationale for the denial,

“The homeowner, Bendt, is punished for speaking out, in admittedly harsh terms, [relating to issues of HOA governance]. Yet the judicial system stands by looking at a distance and allowing Trump and his followers to function as vexatious litigants; allowing them to  raise allegations, which are not only laughable but blatantly false under Rule 11, is shameful conduct.[ii]

What message is being sent by this disturbing decision? To the public? To the homeowners in HOAs seeking the equal protection of the laws under the Constitution? To the national lobbying trade group, CAI, who can breathe easy with respect to any challenges to the constitutionality of the HOA legal scheme that  contains denials of fundamental rights and privileges?

Professor Randy Barnett wrote, speaking of justice and judicial legitimacy,

A constitution that lacks adequate procedures to ensure the justice of valid laws is illegitimate even if it was consented to by a majority …. A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[iii]  

And we must not ignore the effect of precedent on court opinions. Hansford and Spriggs found [that] the doctrine of stare decisis, itself, falls victim to the preferences of the judges. The closer the precedent was to the judges views, the more the precedent would be followed, and vice versa. Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges (p. 75).[iv]  Bad HOA laws abound leading to favorable anti-homeowner decisions.

And still we see “Equal justice under the law” emblazoned on the façade of the US Supreme Court building. It contains a major defect, a misleading fallacy,  and a presumption of supreme court infallibility [without error].  Bad laws — unjust laws — will not produce justice for all!  And that is just what we face in the HOA-Land Nation.

I have argued (2009) for a judicial system that adhere to the following:

Before we can decide, we must examine some of the myths and realities of the American judicial system.  First, we have the concept of justice, the very foundation of any judicial system, although some have argued it is to uphold the law.  Philosophically, a judicial system cannot exist in a democracy if it does not uphold justice and correct the wrongs of the past.  In fact the people are told “Equal Justice Under Law”, the motto on the Supreme Court building; “to secure justice”, the commonplace stated purpose of court rules of procedure;   “to establish justice”, the opening purpose in the Preamble to the US Constitution; and we designate the members of the Supreme Court as “justices”. Notice that “to uphold the law” is not included in the above.  This is the argument, along with the insistence on precedent, used by those special interests who favor unjust laws.[v]

. . . .

So, in particular, what is wrong with the AZ  supreme court denial in Bendt?  A lot!

An amicus brief is submitted, and subject to approval by the Court and the parties, to advise the Justices in better understanding the conditions and factors relevant its opinion that it may not be aware of. The following is a summary of arguments presented in my amicus brief[vi] seeking the Court to review the petition in the name of justice for the homeowner, Bendt, and for all other citizens living n Arizona HOAs.

“The Hannaman 2002 study (NJ) was quite frank and revealing describing problems and complaint still in existence some 19 years later in spite of efforts by the self-proclaimed HOA experts and educators, national CAI. “

“[Referring to Nevada Supreme Court in Kosor v. Olympia Companies, 478 P.3d 390 (2020)]. Because we conclude that each of Kosor’s statements was “made in direct connection with an issue of public interest in a place open to the public or in a public forum,” we reverse the district court’s decision to the contrary and remand for further proceedings consistent with this opinion.

“As our [California] Supreme Court has recognized, owners of planned development units ” ‘comprise a little democratic subsociety . . . .’ ” (citations omitted).” (Damon v. Ocean Hills Journalism Club, 102 Cal. Rptr. 2d 205 (Ct. App. 2000) at “A. Public Forum”).

“Among its findings [South Carolina HOA study committee] were . . . While the Community Association Institute (CAI) and other private entities offer educational resources to homeowners and managers, state government cannot place the sole responsibility of educating homeowners and board members on a private entity.

“Although not presented by the Appellant where three plaintiffs who] are lawyers, and based on claims of false and inexcusable character assassination against Tarter . . . this Court has reasonable suspicion to remand the case for a determination the validity of an anti-slapp motion.

“This Court, or any court, cannot allow a group of individuals or organizations to create a devise in order to escape constitutional protections and enter into a contract, constitutionally valid in all other aspects, to form private local governments whose members remain citizens of this country as well as of their respective states. It, as it stands in regard to HOAs, makes a mockery of the Constitution and our principles of a democratic society.

“The free speech issues of limited-purpose public figure and of HOAs and social media as public forums with respect to political HOA governance issues have been raised and need to be addressed.

“As with Brown [v. Bd of Educ.], America’s culture and environment has changed dramatically from 1964’s Homes Association Handbook and the formation in 1973 of Community Associations Institute (CAI) to deal with rising HOA problems and constitutional concerns after only 9 years. In 1992 CAI dropped its 501(c)3 educational status for 501(c)6 trade organization so it could lobby state legislators.”

I cannot understand the Supreme Court’s denial of Bendt’s petition and the opportunity to rule or to further investigate these issues, by orders or by request to the Legislature — as it has so ordered in the past —  and thereby fulfilling its obligation to defend the Arizona and US Constitutions.  Instead, it seems that the Justices have allowed their opinions to be guided by the prevailing public policy favoring private government HOAs that are independent of the two Constitutions.[vii]

References


[i] See AZ supreme court denies hearing HOA case raising limited-purpose public figure doctrine.

[ii] Id.

[iii] Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004).

[iv] Hansford and Spriggs, The Politics of Precedent on the U.S. Supreme Court, Princeton Univ. Press (2006).

[v] See in general,  HOAs, justice, and judicial myth and precedent.

[vi] Staropoli Amicus brief Tarter  v. Bendt

[vii] See in general, The HOA-Land Nation Within America and Establishing the New America of Independent HOA Principalities.