ASU Law ignores content-neutral free speech for HOAs

Much to my disappointment, the ASU Law library has not responded to my 3 emails[i] requesting an HOA advocate resource listing on its Homeowner Associations resource webpage. Under Books CAI attorney member Scott Carpenter is listed (reference is to an AZ Bar Assn booklet on HOA law, and under Websites AACM (community manager association) is listed.

Both of these listings carry the lobbying view found in the CAI School of HOA Governance.[ii] Neither address constitutional issues nor do they contain the views of constitutional lawyers. There is a constitutional issue at play as I informed the librarian and the Law School Dean  — the illegal bias toward one party’s content while denying another party’s material content. The law requires content-neutral free speech which I believe is being violated by ASU. So, as I proposed, remove these listings, or add my books and web pages or those of other homeowner rights advocates.

How can law students from the prestigious Sandra Day O’Connor School of Law obtain access to material information concerning the long ignored HOA legal scheme that, apparently, ASU does not agree with?  Change cannot occur in the blind! There cannot be change without change!

PS:  I am waiting for a response from The Uniform Law Commission (ULC) that is drafting updates to UCIOA. Its Scope Committee is reviewing my request for ULC study of my proposal for an HOA Member Bill of Rights; it will meet again in January.

NOTES


[i] Copy of email letter

gKS256@nyu.edu

To:  Beth DIFelice (beth.difelice@asu.edu)

CC: ‘douglas.sylvester@asu.edu’; Diana.Bowman@asu.edu

November 11, 2020

Email letter

Beth DiFelice

Director ASU Law Library

Sandra Day O’Connor College of Law

Arizona State University

[ii]  The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

Lost Constitution webinar series – #1

I’d like to thank the attendees at this first of a series of seminars on Restoring the Lost Constitution to HOA-Land. It was my first Hosting displaying important documents.

As mentioned in the seminar, I am primarily focused on legalities but also concerned about the lack of ethical and moral values surrounding HOA-Land.  As an update, I had a recent call from a disabled widow who was allowed to have a front gate in her HOA for 23 years.  A new BOD arrived and differences arose resulting in  a citation for unapproved gate.  The BOD said prove the approval by  some prior BOD, and she couldn’t.  What happened to  the attributes of a genuine healthy community of neighbors helping another in distress, who have compassion and a charitable heart, all making for  a healthy “village”?  NADA!

Welcome to the New America of HOA-Land.

I hope you will find the webinar (see link below) helpful and useful in bringing about necessary changes by alerting your HOA BOD and fellow members as to the real nature of HOA-Land; and the private agenda of CAI.  This webinar argued, and provided documentation, that the dominant entity,  promoting its role as an educator, proclaimed HOAs to be independent principalities operating without government and judicial oversight.  And preferred it that way. That is really secessionist if you think about it for a moment. And harmful to our democratic system of government and its values and principals.

I will invite you all again for the continuation of Introduction as I delve deeper into what HOA-Land is all about; and CAI’s role and dominance over the legislators, the media, the BODs  and HOA members.  I am considering having a panel of a few advocates for an interchange of views. Temporary date is scheduled for Friday, June 5th.

I have uploaded the recording for all to see and distribute with accreditation. Look here  https://vimeo.com/421950279.

Reorienting the HOA board – fair elections

Mentoring: Reorienting the HOA board – fair elections

I cannot overstate the profound damaging effect of the boilerplate CC&Rs covenants – the HOA-Land fair elections doctrine — that define the highly inadequate process and procedures alleged to be fair elections and approved by the member. In a democracy, the fair elections doctrine is the means for the expression of the will of the people and the consent to be governed by the HOA’s members. It is the fundamental basis for a valid consent to be governed. Unjust BOD biased election procedures deny the legitimacy of the HOA-Land doctrine.

In Dublirer the NJ Supreme Court held,

Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. . . . [Dublirer’s] message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values. . . . We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.[1]

In California the appellate court held,

A homeowners association board is in effect ‘a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government’ (citing Cohen v. Kite Hill Community Assn).”[2]

Democracy Web[3] clarifies the importance of fair elections in a democracy.[4]

If consent of the governed is the most fundamental concept of democracy, its most essential right is that of citizens to choose their leaders in free, fair, and regular elections. Other rights are necessary to democracy; elections by themselves are insufficient. Yet the right to freely elect one’s representatives and to influence the political direction of one’s government is democracy’s indispensable political foundation.

Without free elections, there is neither the possibility for citizens to express their will nor the opportunity for citizens to change their leaders, approve policies for the country, address wrongs, or protest the limitation of their rights. Elections establish the citizenry’s and the individual’s political rights. They are the ongoing representation of the consent of the governed

As it stands HOAs cannot be described as a democracy, or a democratic business as CAI’s Tom Skiba(CEO) alleged,[5] so long as the current fair elections doctrine remains in place.

Community associations are not governments — many years of legislation and court rulings have established that fact beyond a reasonable doubt. Yet they are clearly democratic in their operations, electing their leadership from among the homeowners on a periodic basis.

In an unbelievable doubletalk and excellent example of the pot calling the kettle black and Orwell’s DoubleSpeak, Skiba asserts,[6]

The solution to that problem is not to replace democracy with tyranny, royalty, or some other form of government, but to work to make the democratic process better and to hold those elected accountable. . . .

I for one prefer the democratic principles that have served this country for more than 230 years, as frustrating as the process can sometimes be, rather than the various failed alternatives washed up on history’s shores.

In addition, while the appellate court upheld California’s HOA fair elections statutes,[7] the California CAI Legislative Action Committee opposed the decision in support of democratic functions in HOAs.[8]  And not unexpectedly, this “front-line” position is in conflict with the CAI policy:

Community associations are one of the most representative and responsive forms of democracy in America today. Residents of a community freely elect neighbors to serve on the board of directors of the community. Numerous other owners or residents  serve on committees and help with special tasks as they arise.”[9]

Simply unbelievable! Believable!

State legislation to reform HOA fair elections

I am well aware, and you may raise the fact, that state laws and CC&Rs vary quite a bit in regard to voting and director elections. Some say very little except quorum requirements and secret or mail-in ballots; some require independent elections committees and vote counters, or the right to view the ballots, etc. but they all hold true to the Handbook that places strong control within the hands of the BOD. This is especially true when the BOD must approve candidates or propose amendments or rules without real member participation and voice.

Attempts to correct these injustices are found in many states. I am pleased to see that 2 legislators (Assemblyman Bob Andrzejczak and Bruce Land) in the NJ Assembly understand HOA constitutional issues and have sponsored a bill, A-3163 (2013), accordingly. The Cape May County Herald[10] reports,

Homeowner’s Associations must operate under similar rules and procedures as other governing bodies,” Andrzejczak said.  “A resident’s interest and right to approve and elect board members must be preserved. And setting clearer, more fair and unified set of rules for board elections and a clarifying a resident’s ability to recall will help to do just that.

Homeowners living in developments are still consumers and must be protected under the law,” said Land. “Ensuring their right to fair elections and protecting their right to choose board members, who will make decisions on their behalf, is a measure of consumer protection that they simply deserve as property owners.

California’s SB 323 (2019) fair elections bill was made law stating, in part,

A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association. . . . Section (b) is modified to read, “A member who prevails in a civil action to enforce the member’s rights . . . the court may impose a civil penalty of up to five hundred dollars ($500) for each violation.”

Arizona’s SB 1412, making progress at the legislature, also seeks political content protections in HOA politics. It seeks to prohibit HOAs and condos from restricting political free speech. Members are permitted to associate, meet, discuss, show signs regarding political activity.  Key wording:

“AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ORGANIZE TO DISCUSS OR ADDRESS PLANNED COMMUNITY BUSINESS, INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES . . . .”

Why are these unjust and unconstitutional covenants, conditions and restrictions allowed to stand?   The misguided mission and vision statements meant to deceive; the failure to act in the interest of the members; the failure to reject the business judgment rule[11] that serves to protect the BODs over the rights of the members; and the employment of the inequitable HOA fair elections doctrine that deny a genuine consent of the governed.

The answer is obvious to those willing and able to handle the truth. The vast majority of the members have lost their freedom of mind.[12] They appear to be RWA followers[13] of the authoritarian[14] BOD. They have been thoroughly indoctrinated into the teachings of the CAI School of HOA Governance[15] where real estate attorneys provide advice on how to run the HOA and what’s good for the community.

All the more reason for this seminal position paper, Restructuring the HOA Model of Governance. All the more reason for a restructuring of the HOA model and a reorienting of HOA directors and officers to return lost constitutional principles.

 

Notes

[1] Dublirer v. 2000 Linwood Avenue Owners NO. 2011 069154 (N.J. 2014).

[2] Damon v. Ocean Hills, 102 Cal.Rptr.2d 205 (2000).

[3] Democracy Web emerged from the longstanding effort of the Albert Shanker Institute (ASI) and its founding organization, the American Federation of Teachers (AFT), to foster education for democracy in America’s schools. (Scroll down to About).

[4] Democracy Web,  scroll down to Essential Principles.

[5] Tom Skiba, Community Associations Institute Blog, Ungated, April 2, 2008.

[6] Id.

[7] Wittenberg v. Beachwalk HOA,  NO. G046891 (Cal. App. 4th Dist. June 26, 2013).

[8]Appeals Court Ensures Equal Access During Elections”, Blog of the Community Associations Institute California Legislative Action Committee, July 9, 2013.

[9] Section 8 in An Introduction to Community Association Living (2006),

[10] Herald.com (Cape May County NJ, Dec. 8, 2016).

[11] See Reorienting the HOA board: business judgment rule in the Plan.

[12] See “Cultural Dynamics of HOA-Land,” The HOA-Land Nation Within America (2019); HOA Social Dynamics — Freedom of mind pt. 1 (2020) George K. Staropoli.

[13] Robert Altemeyer, The Authoritarians, (2007).

[14] See HOA political dynamics: totalitarian democracy, George K. Staropoli (2019). “Followers submit too much to the leaders, trust them too much, and give them too much leeway to do whatever they want–which often is something undemocratic, tyrannical and brutal.” See survey on HOA authorianism,

[15] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

Reorienting the HOA board: business judgment rule

Mentoring: Reorienting HOA board – business judgment

consulting SIG image1HOAs love business judgment rule (BJR) that can be found in too many court opinions including, as a prime example, the infamous NJ Supreme court opinion in Twin Rivers.

First, the business judgment rule protects members from arbitrary decision-making. . . . Our Appellate Division has uniformly invoked the business judgment rule in cases involving homeowners’ associations.[1]

In CAI’s amicus brief in the above case, argued that “the settled legal principles” of the business judgment rule

permit community association trustees to fulfill their fiduciary duties and to exercise judgment in balancing the needs and obligations of the community as a whole with those of individual homeowners and residents, without undue judicial interference.[2]

As can be noted, the CAI brief equates the HOA interests with the members’ interests and that it is acting in the best interests of the members subject to “the needs and obligations of the community.” Sort of confusing doubletalk me thinks.

Wayne Hyatt is quoted (p. 9) that the business judgment rule

defends the procedure under which the board has acted and the right of the board to be the sole arbiter of the issue involved. The result is that if the procedure is valid, the court will not second guess the substance of a board’s action. Consequently, the court upholds the decision without subjecting the wisdom of the board’s action to judicial scrutiny.[3]

In California’s Lamden v. La Jolla,

[A] hallmark of the business judgment rule is that, when the rule’s requirements are met, a court will not substitute its judgment for that of the corporation’s board of directors. . . . [A]nyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts ‘the risk that the power may be used in a way that benefits the commonality but harms the individual.’ “[4]

I cannot overstate the profound damaging effect by the courts as they continue to ignore HOAs as de facto governments and treat them as a pure real estate corporation. The School has performed an excellent job in creating a supportive mindset. Their demonstrable ignorance can only stem from the thorough indoctrination by the CAI School of HOA Governance that flows from the HOA “bible,” The Homes Association Handbook (cover page link).[5]

The BJR serves to protect the BOD from member lawsuits where the issues center on the BOD’s broad discretionary powers. Essentially the basis of BJR presumes that the BOD knows better about managing the HOA than the judge and, after all, the members chose the directors. In a cop-out not me attitude the judge simply goes along with the BOD’s position. YOU LOSE!

It is a very effective argument, tactic, because the homeowner and his attorney do not challenge this view that the BOD knows best. There is no rebuttal arguing that the BOD is practicing bad management, or is acting inconsistent with their obligation to act in members best interest – not in the best interest of the HOA. There is the presumption that the members’ interests are totally found in the governing documents and none other exist. It is an attitude in contrast to our Bill of Rights, Amendments 9 (enumeration clause) and 10 (rights delegated to the people).   Under the HOA “constitution,” any non- specified prohibitions or rights belong to the HOA and not its members.

Once again I’m touching upon a defect in the HOA legal scheme. Under corporation law the BOD is responsible to the HOA association. True! But the CC&Rs override that law. Why?  Let’s not forget that we have a PRIVATE contract agreed to by the members requiring the BOD to function in the best interest of the members.[6]  The private contract defense works for the members and not the BOD What’s fair is fair! Right?

In order to move past many of the persistent HOA problems and issues the BOD, as well as the legislators and courts, must adjust their views and mindset with respect to the HOA scheme. To restore equality before the law HOAs must be viewed as another form of local public government. The reorientation of the BOD comes first. There are ample materials, courses, seminars and public education, a substantial precedents and history on how to function as a public government and still protect and retain the private nature HOA community.

Notes

[1] CBTR v. Twin Rivers, 929 A.2d 1060, II, (N.J. 2007).

[2] CAI amicus brief, CBTR v. Twin Rivers (N.J. Super. App. Div. Docket C-121-00 2004).

[3] Id.

[4] Lamden v. La Jolla, 980 P.2d 940, Calif. 1999).

[5] The Homes Association Handbook, MARYJO CORNISH, Editor, Urban Land Institute, TB#50 (1964). Its Foreword omits any concern about the homeowners or constitutional government. See cover pages that provide evidence of lack of local government concern as part of the purpose of TB50. See Analysis of The Homes Association Handbook.

[6] See “HOA contractual mission” in Restructuring HOAs – intents and purposes.

Reorienting the HOA board and its followers

Mentoring: Reorienting HOA board – mission

Review of StarMan Group Mission

    • to establish the climate and culture of the HOA enabling the restoration of the lost constitutional principles of democratic government — individual rights, justice and fair play — for its members within the confines of a private contractual government, and
    • to remove the very strong external influences of the special interest vendors and lobbyists who are the primary causes of this deviation from the general societal norms and values.

In earlier papers I described the Cultural Dynamics[1] of and the domination of HOA-Land[2] by industry “stakeholders” who claim a special interest in your HOA controlled home. I maintained that the Community Associations Institute (CAI) dominates and heavily influences the decisions and functioning of boards (BODs) through its strong influence on state legislatures adopt biased and unjust laws detrimental to the members. CAI’s effect on the BOD, the members — especially the loyal “followers” — and the public in general stems from 45 years of indoctrination by means of the CAI School of HOA Governance.[3]

This series, “Restructuring the HOA Model of Governance,”[4] offers a plan, conforming to the principles of organizational development,[5] to return HOA-Land to democratic constitutional government and cease being a protected outlaw government functioning outside the Constitution and laws of the land. Having introduced my positions on the role of the BOD in its policymaking capacity and the heavy hand of CAI, I now address the need to reorient the BOD with its huge authoritarian[6] powers that would not be allowed under municipal governments.

“HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments.”[7]

I wrote, “The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

BOD reorientation

Addressing nonprofit organizations, eminent management consultant Peter F. Drucker wrote: “The first job of the leader is to think through and define the mission of the institution. . . . One of the most common mistakes is to make the statement [a series] of good intentions.[8] It has to be operational, otherwise it’s just good intentions. Using my prior example of a large-scale active adult HOA in Arizona, I contrast the mission, goal and values statements that illustrate an effective and productive community.

HOA vision statement: [HOA] is the premier active, age−restricted community in Arizona.

Restructured Vision Statement: To become the premier active, age-restricted community in Arizona.

HOA mission statement: [HOA] provides residents with a high−value community, with resort−style amenities, in which every person can choose to participate and live well, based on their needs and desires. This high standard will maximize our investments and promote our well−being in an active close−knit community.

Restructured Mission Statement: To provide residents with a high-value community with resort-style amenities to maximize our investments.

HOA values statement: In support of our Mission Statement, we hold to these values:

      • We foster relationships built on respect, trust, and effective communications.
      • We listen to understand.
      • We are open−minded, collaborative, and always look for ways to improve our community.
      • We believe in life−long learning and a desire for active well−
      • We are a forward−looking, fiscally−sound community
      • We encourage an environment of empowerment and personal responsibility.

Restructured Values: We believe in a community culture having high standards and principles of conduct and behavior.

These HOA views and attitudes came quite as a surprise considering that it is a $20,000,000 revenue operation, and one would expect it to do better than that. My impression is that they are a prime example of the BOD’s mistake of using lofty, high and mighty statements lacking focus and aimed to give the appearance of good intentions, as Drucker explained above. These HOA statements read very similar to CAI’s propaganda and its advice and training offered by its School of HOA Governance.

The time is well passed for the BOD to drop CAI as an advisor, as CAM and as its HOA attorney. It’s well passed the time for BOD’s to learn about the effective and healthy council-manager form of local government.[9] Not that public government is perfect but it is far better in upholding the principles of democratic government lost under the adhesive CC&Rs “constitution.”

(Part 2 of the Reorienting HOA BOD will discuss BOD failure to attract member commitment as volunteers).

 

Notes

[1] George K. Staropoli, HOA-Land Nation Within America, Part 1, “The Cultural Dynamics of HOA-Land” (2019) and High RWA followers can be found in HOA members. (2019).

[2]HOA-Land is a collection of fragmented independent principalities within America, known in general as HOAs, that are separate local private governments not subject to the constitution, and that collectively constitute a nation within the United States”, Defining HOA-LAND: what it is (2017).

[3] George K. Staropoli, Restructuring HOAs: “CAI School and member benefits” pt. 2 (2020) and CAI School faculty advice – managing HOAs (2020).

[4] George K. Staropoli, Restructuring the HOA model,(2019).

[5] See in general, “Organizational Development,” George K. Staropoli, (2019).

[6] Supra n. 1.

[7] Evan McKenzie, Privatopia: Homeowners Associations and the Rise of Residential Private Governments, Yale Univ. Press, 1994.

[8] Peter F. Drucker, Managing the Nonprofit Organization: Principles and Practices, HarperCollins (1990).

[9] See in general, Roger L. Kemp, “Forms of Governance,” Managing America’s Cities: A Handbook for Local Government Productivity, McFarland & Co., (2007). They are: Strong Mayor, Council-Manager, Town Meeting (direct or representative democracy), and Commission.