Authoritarian HOAs and AZ SOS Fontes on American authoritarianism

In January 2022 I summarized my earlier works on authoritarianism in HOAs as a natural consequence of authoritarianism in America.[1]

I came to the conclusion in 2019 that there was a rise in authoritarianism throughout the world including America. And with HOA-land[2] constituting of some 23% plus of Americans, authoritarianism was also well rooted in the HOA form of governance. 

“The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. ‘There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.’ (Authoritarianism in the HOA-Land Nation (2019)).

There is a mass psychology present in HOA-Land. Mass psychology is a study of how your behavior is influenced by large groups of people — “birds of the same feather flock together.” It is the result of the longtime conditioning and indoctrination into identifying with the principles and beliefs promoted by the CAI School of HOA Governance. Mass Psychology and Cult Behavior Within HOA-Land (2020)).

Arizona Secretary of State-Elect, Adrian Fontes

In MSNBC interview on Nov.17, 2022, the Arizona Secretary of State-Elect had the following to say about Americans .[3]

Election deniers . . . we need to call them authoritarians because they don’t believe in the democratic process.  They don’t believe in the consent of the governed. This is  so soundly an authoritarian movement when you look at the people who care about democracy, who care about the function of our government.”

“The people have spoken. There is an authoritarian movement in America, it may be loud . . . but it is dangerous, and we must continue to push back against it with vigor. . . . We have to become better citizens across the nation . . . we have to understand the fundamental structure [of government] better.”

Asked by the interviewer what can you do as secretary of state,  

“I have begun to work with . . . members of the Arizona Legislature . . . we got to be bigger than the problem, we got to be working together, to help people understand that we are all in this together.  You have to set your partisanship aside and work together toward common ends.”

“That’s the kind of leadership that folks like me have to set.   We got to reach out and show the American public that . . . cooperation will open up more avenues of conversation and that’s how we as leaders can set the example.”

Restructure the HOA model of governance

I have stepped outside the box to offer the boards of directors (BOD) a fresh view of the nature and legalities of the HOA legal scheme. StarMan Group HOA Management Consulting believes that the HOA legal model of government must be restructured 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.

The HOA model of local government is a fourth type of local government in addition to the public domains of commission, council-manager, and council-mayor forms. I ask: Is there a legitimate, bona fide reason and justification for the HOA to function outside public government?   No, there is none!

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges, and immunities.[4]

The task before the new Arizona administration

In 2006, HB 2824 (Ch.324), sponsored by Rep. Eddie Farnsworth, established OAH hearings of HOA disputes, followed in 2011 by SB 1148 (Ch. 185), sponsored by Senator Andy Biggs to revise HB 2824 to deal with constitutionality challenges by the trade group, CAI, and 11 years later Arizona now has HB 2158 (Ch. 125), sponsored by Rep. John Kavanagh, allowing for a more meaningful, democratic voice of the members in HOA government.

Hopefully, Fontes will apply his concerns about authoritarian America to that 23% of the population directly subject to authoritarian, contractual, private local government known as HOAs. Hopefully, the to-be-elected Attorney General will identify with Fontes, and they will exert strong influence on the new administration to correct the past legislative ills of supporting, co-operating, encouraging, and protecting the HOA legal structure.

Hopefully, the newly constituted Arizona Legislature will  restore fundamental and constitutional protections, especially due process and the equal protection of the law, to citizens living in homeowner associations.

Notes


[1] Authoritarianism in America; authoritarianism in HOA-Land (2022).

[2] Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. HOAs are separate, local private governments not subject to the constitution, and collectively constitute a nation within a defined geographical region known as the United States.   “A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.”

[3] We Must Push Back Against Authoritarians, Says Arizona’s Secretary Of State-Elect – Bing video.

[4] Restructuring the HOA model, George K. Staropoli, StarMan Publishing  (2020).

CAI: your friend or your foe?

Author’s note:  I’d like to thank the ever-alert Deborah Goonan of IAC for this important tip.

Unbelievably, the CAI Washington chapter spills the beans  on CAI’s mission and objectives.  As a tax-exempt 501(c)6 business trade nonprofit the oxymoron statements below admit to working for business entities and at the same time, serving the consumers of these services, the HOAs.  “to advocate on behalf of community associations.” 

CAI is not permitted to have HOAs as members, so it recruits the boards of directors as individual volunteers creating conflict of interest conditions. I offer this statement by the chapter to set the tone for my criticism of the following article.[1] Note it skips over serving its members, the attorneys and managers who are vendors to HOAs.

“Our Vision: “To be recognized as the leading resource for Community Associations and Business Partners.

“Our Mission: “Optimize the operations of Community Associations and foster value for our Business Partners.

What We Do: 1. Advocacy – establish and enhance/maintain relationships with legislators and government officials and to advocate on behalf of community associations; 2. Member Development – boost membership and participation through enhanced outreach; 3. Education – provide a World-Class Education Curriculum for Stakeholders; 4. Member Services – maximize value provided to our current members, including Business Partners (events, conferences, materials, etc.).

Who We Serve: “Community Association Leaders, Business Partners, CAI National, Community Association Members, Developers/Builders, Financial Institutions, Government Agencies, Insurers, Legislators, Managers, Media, Realtors, Sister Associations.

* * * *

Quorum Magazine article Based on the above stated mission and purpose of CAI, the Washington chapter’s magazine recounts a superficial, misleading whitewash portrayal of the history of HOAs in America[2]; it serves as good CAI propaganda and portrays an unprofessional social media illusion that  all’s well in HOA-Land. It is all real estate development oriented sold as a desired and well accepted housing alternative by uninformed individuals.

The article is devoid of constitutional and democratic concerns and validity centering on the HOA as another form of local government —  a contractual, private government.  These issues affecting the rights and freedoms of HOA members can be found in detail in the listed texts and selected quotes. Note the title of the texts, which says a lot.

  • Prof. Dilger wrote in Neighborhood Politics (1992)[3],

“For example, most of those who advocate the formation of RCAs [HOAs] assume that RCAs  . . . incorporate all the rights and privileges embodied in the US Constitution, including . . . the rights of due process and equal protection under the law found in the Fourteenth Amendment.”

  • Prof. McKenzie wrote in his landmark Privatopia (1994)[4],

“T]he property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander. . . . [Consequently,] this often leads to people becoming angry at board meetings claiming that their ‘rights’ have been violated – rights that they wrongly believe they have in a [HOA]. 

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

  • Steven Seigel wrote in his WM & Mary journal (1998)[5],

“Because of the traditional view, RCAs [HOAs] rarely have been deemed state actors subject to the requirements of the Constitution. As private entities, RCAs regulate behavior in a way that is anathema to traditional constitutional strictures;”

  • CAI-ULI funded publication Community Associations (2005)[6].

“[HOAs are] a consumer product sold by profit-seeking firm, a legal device, a corporation reliant on both coercive powers and voluntary cooperation, a democracy, and a lifestyle.  With this plan, TB50 [The Holmes Association Handbook] set out the plan that would be taken in forming the CAI.”

  • Franzese and Seigel argued in their Rutgers journal article (2008)[7]

“The laissez-fare approach to CIC [common interest communities]  regulation is reflected in the statutory law, which affords exceedingly few rights and protections to homeowners association residents.”

It can be safely concluded that CAI is not your friend, and any HOA in bed with CAI is representing its interests and not yours.

Notes


[1] Washington Metropolitan Chapter, CAI (Oct.18, 2022).

[2]Community Associations – A Historical Perspective,” Quorum Magazine, CAI (August 2016, reprinted Oct. 2022).  

[3]  Roger Jay Dilger, Neighborhood Politics: Residential Community Associations in American Governance, p. 160, New York Univ. Press (1992). Formerly WVU Prof. Political Science and Director of Political Affairs.

[4] Evan McKenzie, Privatopia: Homeowner Associations and the Rise of Residential Private Government,  Yale Univ. Press (1994).

[5] Steven Siegel, “The Constitution and Private Government: Toward the Recognition of Constitutional Rights in Private Residential Communities Fifty years After Marsh v. Alabama,” Wm & Mary Bill of Rights J., Vol. 6, Issue 2 (1998).

[6] Donald R. Stabile, Community Associations: The Emergence and Acceptance of a Quiet Innovation in Housing, p. 144 (2000). Funded by CAI and ULI.

[7] Paula A. Franzese and Steven Siegel, “The Twin Rivers Case: Of Homeowners Associations, Free Speech Rights And Privatized Mini-Governments,” 5 RUTGERS J.L. & PUB. POL’Y 630 (2008).

HOA management case study – 2022 epilogue

Author’s note:  This commentary is a follow up to my Dec. 2021 – Feb. 2022 “mgmt case study” posts relating to an Arizona HOA. Its board has continued its path with a few suggestions on open meetings and videotaping the board meetings.  The series starts by entering “case study” in the Search box in the left panel. This is a reorientation and educational process, but the board is not yet amenable to hear the whole truth about HOAs.

Resource: Towe Lifestyle article: SCG community is a business

“[The board of directors]  bring an extraordinary level of imagination and management expertise to bear on the very complex problems of running a sophisticated and demanding business. No sugar coating either. The men and women serving you on the BOD represent you and your interests with a sincere desire to make Grand the very best place it can be.[1]

I beg to differ with this statement on several issues that I see as PR and more BOD propaganda.[2]

First, SCG is not a business!  Did you sign a commercial UCC contract or residential  real estate contract? Enough said! From whence  does this mistaken belief  arise.  In my many years of research I found it to be from long term indoctrination and acceptance of the teachings of the CAI School of HOA Governance[3], my categorization, of CAI’s special interest agenda. There is strong evidence supporting the view that CAI dominates SCG policy.[4]

In 2015 the board claimed in its IRS tax-exempt application that SCG was a nonprofit social welfare organization and was not applying for exemption as an HOA.  There are no grounds, no authority in the governing documents, then and now, to make such an assertion. In the application, the president informed the IRS that SCG provides services “benefitting both the Sun City Grand community and the surrounding community.” You will not find that “and surrounding community” claim anywhere else but on the IRS application.

Second, the article contains a number of vague and confusing assertions not supported by the facts,  and contradict such attitudes found in other BOD publications by other SCG officials. One gets a sense of Who’s in charge? Additionally, it raises the question of board competence, which can be found in recent actions and decisions by the BOD[5]. Puffing can be found in the article:

  • an extraordinary level of imagination and management expertise
  • “to make Grand the very best” contradicts the Vision statement that proclaims SCG is already the best, “Grand is the premiere age-restricted adult association.”
  •  “sophisticated and demanding,” which is undoubtedly demanding but a sophisticated” business?  Are the demands on the board of directors beyond its pay grade? Does the public view town managers, SCG equivalent to CAM, viewed as a business? Does the public view town councils, the equivalent of the SCG board, viewed as a business?

Finally, “[Directors] on the BOD represent you and your interestsis misleading and contradicts the law and SCG policy that the board owes its obligations to the HOA “person.”  The 2021 Candidates Package paragraph “9a”,  makes my point. “Directors work first and foremost for the best interests of the Association.”  This authoritarian tone is contrary to our democratic values. This attitude reflects its policy to run SCG as a business, and at times a for-profit business.  

I’m left with who and what is SCG?  The governing documents, like the US Constitution make that clear; yet the board hasn’t seemed to accept this foundation for its authority to act on behalf of the members, and that’s not to be a business.  It has failed to address two top level management concerns of boards of directors: What is our business and what should it be?

As I detail in “CAI dominates SCG” (see link below), the board has a duty of care and a fiduciary responsibility to the members. Unless the BOD does an about face in regard to its CAI legal advisors, members can expect more of the same in dealing with several serious legal matters that are on the horizon.

Notes


[1] Robert Towe,  Board Director, “Our Great Community”, Lifestyles, Oct. 2022.

[2] “Propaganda” is false statements, half-truths, omission of facts, and misrepresentations designed to produce a favorable attitude and mindset in the targets.”  The BOD provides illusions of happiness and approval, and are supported by the majority of their members; its messages use propaganda statements — disinformation consisting of false, misleading, half-truths, omitting facts, and fear.

[3] CAI School of HOA Governance: 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.

[4] Read the domination argument paper at:   CAI Dominates SCG.

[5] See Wizard of SCG.

Arizona’s landmark fair elections, free speech law on HOA governance

On Sept. 25, 2022, Arizona’s new HOA reform law (Session Law Ch, 125; HB2158),  bringing substantive free public speech on HOA governing issues and establishing a fair elections procedure, will become effective.

This is a major step forward to the application of Constitutional equal protection of the laws and proper due process as guaranteed to all US citizens. Under this bill, effective and meaningful opportunity for Arizona members to participate fairly and in an equal manner in the governance of an HOA.

It starts with the ability to campaign and discuss governing issues with the members on the same level playing field. All the members seeking change have to do is to get involved knowing they won’t be “fighting city hall” without legislative support. The “tools” are there for members to stand up and fight for their rights. No one else will do it for you! Especially your board of directors.

As James Madison wrote in The Federalist Papers #51: “If angels were to govern men, neither external nor internal controls on government would be necessary.” HOA boards for the most part have demonstrated that they are indeed not angels.

I congratulate the bill sponsor, Rep. John Kavanagh, and all advocates who supported this bill and the Arizona Legislators coming to understand the need to stop board of director’s abuse under authoritarian private agreements.

The intent and purpose of this law are highlighted below :

“‘association-specific political sign’ means a sign that supports or opposes a candidate for the board of directors or the recall of a board member or a condominium ballot measure that requires a vote of the association unit owners.

The details specify the rights of members and prohibitions on the BOD regarding these signs. Furthermore,

“association may not prohibit or unreasonably restrict a unit owner’s ability to peacefully assemble and use common elements of the condominium [or HOA];

“group of unit owners may assemble to discuss matters related to the condominium [or HOA], including board of director elections or recalls, potential or actual ballot issues or revisions to the condominium documents, property maintenance or safety issues or any other condominium matters . . . .”

Relevant sections of HB 2158

The relevant sections of the new law can be read here: HB 2158;  Ariz. Sess. Law Ch 125 (2022). An audio version on Spotify can be heard here: https://spotifyanchor-web.app.link/e/mqz2Fe4Dytb

HB 2158;  Ariz. Sess. Law Ch 125 (2022)

Reformatted for ease of comprehension. New law is shown in blue caps according to legislative rules. The law duplicates the provisions separately for Condo (ARS 33-1600 et seq.)  and Planned Community HOA (ARE 33-1800 et seq.)  statutes.

ARS 33-1261 (p. 3 – 4)

H. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS,

  • AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT THE INDOOR OR OUTDOOR DISPLAY OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN
  • BY A UNIT OWNER BY PLACEMENT OF A SIGN ON THAT UNIT OWNER’S PROPERTY, INCLUDING ANY LIMITED COMMON ELEMENTS FOR THAT UNIT THAT ARE DOORS, WALLS OR PATIOS OR OTHER LIMITED COMMON ELEMENTS THAT TOUCH THE UNIT, OTHER THAN THE ROOF.
  • AN ASSOCIATION MAY ADOPT REASONABLE RULES REGARDING THE PLACEMENT, LOCATION AND MANNER OF DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS,
  • EXCEPT AN ASSOCIATION SHALL NOT DO ANY OF THE FOLLOWING:

1. PROHIBIT THE DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS BETWEEN THE DATE THAT THE ASSOCIATION PROVIDES WRITTEN OR ABSENTEE BALLOTS TO UNIT OWNERS AND THREE DAYS AFTER THE CONDOMINIUM ELECTION.

2. LIMIT THE NUMBER OF ASSOCIATION-SPECIFIC SIGNS, EXCEPT THAT THE ASSOCIATION MAY LIMIT THE AGGREGATE TOTAL DIMENSIONS OF ALL ASSOCIATION-SPECIFIC SIGNS ON A UNIT OWNER’S PROPERTY TO NOT MORE THAN NINE SQUARE FEET.

3. REQUIRE ASSOCIATION-SPECIFIC POLITICAL SIGNS TO BE COMMERCIALLY PRODUCED OR PROFESSIONALLY MANUFACTURED OR PROHIBIT USING BOTH SIDES OF THE SIGN.

4. REGULATE THE NUMBER OF CANDIDATES SUPPORTED OR OPPOSED OR THE NUMBER OF BOARD MEMBERS SUPPORTED OR OPPOSED IN A RECALL OR THE NUMBER OF BALLOT MEASURES SUPPORTED OR OPPOSED ON AN ASSOCIATION-SPECIFIC POLITICAL SIGN.

5. MAKE ANY OTHER REGULATIONS REGARDING THE CONTENT OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN, EXCEPT THAT THE ASSOCIATION MAY PROHIBIT USING PROFANITY AND DISCRIMINATORY TEXT, IMAGES OR CONTENT BASED ON RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS OR NATIONAL ORIGIN AS PRESCRIBED BY FEDERAL OR STATE FAIR HOUSING LAWS.

* * * *

J. NOTWITHSTANDING ANY PROVISION IN THE CONDOMINIUM DOCUMENTS,

AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT A UNIT OWNER’S ABILITY TO PEACEFULLY ASSEMBLE AND USE COMMON ELEMENTS OF THE CONDOMINIUM IF DONE IN COMPLIANCE WITH REASONABLE RESTRICTIONS FOR THE USE OF THAT PROPERTY ADOPTED BY THE BOARD OF DIRECTORS.

AN INDIVIDUAL UNIT OWNER OR GROUP OF UNIT OWNERS MAY ASSEMBLE TO DISCUSS MATTERS RELATED TO THE CONDOMINIUM,

* * *

 1. “ASSOCIATION-SPECIFIC POLITICAL SIGN” MEANS A SIGN THAT SUPPORTS OR OPPOSES A CANDIDATE FOR THE BOARD OF DIRECTORS OR THE RECALL OF A BOARD  MEMBER OR A CONDOMINIUM BALLOT MEASURE THAT REQUIRES A VOTE OF THE ASSOCIATION UNIT OWNERS.

ARS 33-1808 (p. 7 – 8)

K. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS,

  • AN ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT THE INDOOR OR OUTDOOR DISPLAY OF AN ASSOCIATION-SPECIFIC POLITICAL SIGN BY A MEMBER BY PLACEMENT OF A SIGN ON THAT MEMBER’S PROPERTY.
  •  AN ASSOCIATION MAY ADOPT REASONABLE RULES REGARDING THE PLACEMENT, LOCATION AND MANNER OF DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS,
  • EXCEPT AN ASSOCIATION SHALL NOT DO ANY OF THE FOLLOWING:
  • PROHIBIT THE DISPLAY OF ASSOCIATION-SPECIFIC POLITICAL SIGNS BETWEEN THE DATE THAT THE ASSOCIATION PROVIDES WRITTEN OR ABSENTEE BALLOTS TO MEMBERS AND THREE DAYS AFTER THE PLANNED COMMUNITY ELECTION.
    • LIMIT THE NUMBER OF ASSOCIATION-SPECIFIC SIGNS, EXCEPT THAT THE ASSOCIATION MAY LIMIT THE AGGREGATE TOTAL DIMENSIONS OF ALL ASSOCIATION-SPECIFIC SIGNS ON A MEMBER’S PROPERTY TO NOT MORE THAN NINE SQUARE FEET.
    • REQUIRE ASSOCIATION-SPECIFIC POLITICAL SIGNS TO BE COMMERCIALLY PRODUCED OR PROFESSIONALLY MANUFACTURED OR PROHIBIT USING BOTH SIDES OF THE SIGN.
    • REGULATE THE NUMBER OF CANDIDATES SUPPORTED OR OPPOSED OR THE NUMBER OF BOARD MEMBERS SUPPORTED OR OPPOSED IN A RECALL OR THE NUMBER OF BALLOT MEASURES SUPPORTED OR OPPOSED ON AN ASSOCIATION-SPECIFIC POLITICAL SIGN.
    • MAKE ANY OTHER REGULATIONS REGARDING THE CONTENT OF AN  ASSOCIATION-SPECIFIC POLITICAL SIGN EXCEPT THAT THE ASSOCIATION MAY PROHIBIT USING PROFANITY AND DISCRIMINATORY TEXT, IMAGES OR CONTENT BASED ON RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS OR NATIONAL ORIGIN AS PRESCRIBED BY FEDERAL OR STATE FAIR HOUSING LAWS.

* * *

M. NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS,

  • AN  ASSOCIATION MAY NOT PROHIBIT OR UNREASONABLY RESTRICT A MEMBER’S ABILITY TO PEACEFULLY ASSEMBLE AND USE COMMON AREAS OF THE PLANNED COMMUNITY IF DONE IN COMPLIANCE WITH REASONABLE RESTRICTIONS FOR THE USE OF THAT PROPERTY ADOPTED BY THE BOARD OF DIRECTORS.
  • AN INDIVIDUAL MEMBER OR GROUP OF MEMBERS MAY ASSEMBLE TO DISCUSS MATTERS RELATED TO THE PLANNED COMMUNITY,
    • INCLUDING BOARD ELECTIONS OR RECALLS, POTENTIAL OR ACTUAL BALLOT ISSUES OR REVISIONS TO THE COMMUNITY DOCUMENTS, PROPERTY MAINTENANCE OR SAFETY ISSUES OR ANY OTHER PLANNED COMMUNITY MATTERS.
    • A MEMBER MAY INVITE ONE POLITICAL CANDIDATE OR ONE NON-MEMBER GUEST TO SPEAK TO AN ASSEMBLY OF MEMBERS ABOUT MATTERS RELATED TO THE COMMUNITY.
    • THE ASSOCIATION SHALL NOT PROHIBIT A MEMBER FROM POSTING NOTICES REGARDING THOSE ASSEMBLIES OF MEMBERS ON BULLETIN BOARDS LOCATED ON THE COMMON AREAS OR WITHIN COMMON AREA FACILITIES.
    • AN ASSEMBLY OF MEMBERS PRESCRIBED BY THIS SUBSECTION DOES NOT CONSTITUTE AN OFFICIAL MEMBERS’ MEETING UNLESS THE MEETING IS NOTICED AND CONVENED AS PRESCRIBED IN THE COMMUNITY DOCUMENTS AND THIS CHAPTER.

O. For the purposes of this section: ,

1. “ASSOCIATION-SPECIFIC POLITICAL SIGN” MEANS A SIGN THAT SUPPORTS OR OPPOSES A CANDIDATE FOR THE BOARD OF DIRECTORS OR THE RECALL OF A BOARD MEMBER OR A PLANNED COMMUNITY BALLOT MEASURE THAT REQUIRES A VOTE OF THE ASSOCIATION MEMBERS.