Publications on HOA constitutionality and legal structure

Peter F. Drucker was an internationally renowned management consultant in the 50s and author of the management “bible,” The Practice of Management. “A classic since its publication in 1954, The Practice of Management was the first book to look at management as a whole and being a manager as a separate responsibility.” Bob Woodward you should know. 

View publications here: Amazon.com: George K Staropoli: Books, Biography, Blog, Audiobooks, Kindle

Explaining HOA member irrationality – the BOD can do no wrong

My concern, since I was a teenager, was how do people make decisions and important choices, and why. It should be generally accepted today that we are facing a lot of harmful irrationality in many aspects of our society. It would seem, addressing the conduct, behavior and choices made by members of HOAs with respect to their HOA, and to the institution of HOAs in general, that the adage “My rationality is your irrationality and vice versa” is at play.  (What you consider rational I consider irrational, and what you consider irrational I consider rational).

My many years of activism in HOA reform legislation and research into this issue led me to the strong belief that the forces and dynamics of cult behavior[1] and authoritarianism[2] were the chief factors in the behavior of HOA members; the majority of whom seem to act in a highly irrational manner that was harmful to their own self-interests – the HOA can do no wrong.

Well, thank goodness Steven Pinker[3] makes some sense of rationality by delving into the functioning of the mind from a cognitive psychologists point of view.[4]  (It’s like trying to explain why the chicken crossed the road). Having a minor in psychology, I describe Pinker’s presentation as rather deep being directed more to  Rationality 201 or even higher, Rationality 301, using college level course structure. The “meat” of his book, for my purposes, comes in Chapter 10, What’s Wrong With People, when he comes down to the level of the average person.

From the very start Pinker makes it clear that the average person does not understand scientific investigation, the mathematics of probability, formal logic analysis, syllogisms, forecasting, etc..  He simply uses his gut feelings, his intuition,  which has always been mankind’s way of thinking.

Summarizing the author’s views, using annotations to simplify his learned arguments,

To be sure, many superstitions originate in overinterpreting coincidences, failing to calibrate evidence against priors, overgeneralizing from anecdotes, and leaping from correlation to causation. [In more common terms, failing to vet the claims or to conduct  due diligence].

Social media may indeed be accelerating their spread, but the [appeal] lies deep in human nature: people . . .  compose these stories, and it’s people they appeal to.

The mustering of [reasons] to drive an argument toward a favorable conclusion is called motivated reasoning. The motive may be to [support] a favorable conclusion, but [also to] flaunt the [other sides] wisdom, knowledge, or virtue.

People seek out arguments that ratify their beliefs and shield themselves from those that might disconfirm them. [Emphasis added].

“A large majority of Americans consider themselves less susceptible to . . .  biases than the average American, and virtually none consider themselves more biased.”

Study the above statements by the author carefully. It should become apparent that they describe the why and how the bulk of HOA members blindly obey their HOA board of directors.  They also explain the cult mentality of and the authoritarian appeal by the members (see Notes below).  It demonstrates that the mindset of the majority of members is believing that their HOA is heaven on earth and the next best thing to Mom’s apple pie; they do not want that belief disturbed and— unconsciously — naturally adopt motivated reasoning to preserve their image of a better community, a better world.

Please understand the difference between a real estate condominium and planned subdivision with its desirable amenities, landscaping, and oversight on contractual violations from the association that is the authoritarian, governing body also commonly referred as the HOA.  The former can be retained under the protection of Constitution now denied to the HOA members.

Applying Pinker’s findings, did the Arizona Supreme Court act irrationally in its denial to review the Tarter v. Bendt Petition[5] filed by the homeowner?

Notes


[1] See Cult behavior within HOA-LandEscaping the HOA cult environmentA Plan Toward Restructuring the HOA Model of Governance.

[2] See HOA political dynamics: totalitarian democracy and  Authoritarianism in the HOA-Land Nation.

[3] Steven Pinker, Rationality: What It Is, Why It Seems Scarce, Why It Matters, Viking (2021).

[4] Cognitive psychology is the scientific study of the mind as an information processor. Information processing in humans resembles that in computers, and is based on based on transforming information, storing information and retrieving information from memory. Cognitive Psychology.

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

AZ Senate protects HOA misconduct rejecting HB 2052

The Arizona Senate is still sitting on HB 2052 since a month ago, March 1st,  a bill providing for member participation in HOA governance.  The bill  explicitly states, since the CC&Rs is seen as a contract, what the HOA cannot do and must allow for fair elections and meaningful  participation in HOA governance.

In the past I’ve addressed this constitutional question of fair elections in the HOA model of an authoritarian,  business form of governance.  I’ve provided examples of incidents and court cases reflecting this denial of fair elections, which exist in the public domain, as if the HOA is afraid of the democratic voice of its members.

In this writing I will call to your attention how an upscale, over 1,000 member HOA board — as a representative example of such HOAs — refuses to accept the facts laid before it that provide valid cause to conduct a due diligence examination; and to validate its positions in regard to its fiduciary obligations of good faith conduct and obedience to the governing documents.

Below I’ve copied parts of its application package provided to all candidates for  a director’s position. The package material clearly shows the BOD’s awareness of its fiduciary obligations and its required treatment with respect to the membership.

Obligations  and liabilities of directors

“Directors have a fiduciary duty to the Association and to each member.

“The duty of loyalty requires that:   Directors act in good faith  pursuant to a free, honest exercise of judgment not influenced by considerations other than the best interest of the Association.

“Failure to discharge the fiduciary duty can subject the Association to liability and subject the Director to personal liability. A Director can also be liable for illegal or tortuous acts of the Board of the Association if he/she participates in the decision to authorize the acts or knowingly fails to take steps to avoid the action. “[Emphasis added].

HOA control of the candidate process and campaigning

Getting down to the specific application of HB 2052, the relevant HOA’s candidacy procedures follow, with the opening line stating: “The Campaign and Election Policies have been carefully developed to provide a fair and clean process for candidates and all members.

While the specific policies are not clearly stated as whether prohibited or permitted, the overall tone is definitely of a prohibitive nature. The 14 points are shown as Exhibit 1 below. In sum, they include not using email listings; association facilities or agencies, clubs, etc. websites; no right to hold Q & A sessions independent of HOA;  no right to campaign through social media —  Facebook, Instagram, etc.; all advertising must be HOA approved; distributing flyers outside restaurants, presumably those within the HOA, or on common areas.

The policies of this HOA, and many other large-scale HOA are similar but not so detailed, demonstrate the failure of the board directors to act in good faith and as a fiduciary for the members.  For the HOA to argue that “The ends justify the means and we determine what’s good for the members, but the HOA entity comes first” is unsatisfactory and irrelevant. These policies reflect an authoritarian government that accepts the rejection of fundamental member democratic rights and privileges because they can hide behind the questionable legality of the CC&Rs.

There can be no excuse for HOA directors not being aware of the voluminous materials available for conducting their due diligence with respect to democratic, fair elections and member participation in HOA governance. They have been given plenty of notice, which subjects them to personal liabilities and prevents them from hiding behind “my attorney said it was OK,” or from acts of omission – doing nothing. 

This representative HOA’s policy so informs them of their liability. Yet, nothing is done to correct these violations of good faith. And still the directors, officers, and managers all demand respect! It’s shameless!

What is going on, you may ask?  Well, the board is setting policy for the acceptance of candidates without a vote of the membership. In other words, unless the proposed candidates are accepted by the BOD, the members have lost a candidate of their choosing. They have lost a meaningful participation in the governing of the HOA; they cannot disagree with the establishment!  So, if you thought your HOA was democratic, forget about it! 

Also, the BOD controls how candidates acceptable to them can campaign, placing severe restrictions not found in the fair public elections procedures.  See Exhibit 1 below. Again, members have lost their right to fair and free elections in HOA matters.

AZ Senate’s rejection of HB 2052

It is easily seen that  the AZ Senate supports these undemocratic polices as represented by this HOA’s practices. 

I have maintained that,

“Public policy today rejects constitutional government for HOAs allowing them to operate outside the law of the land. 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.”

See, CC&Rs are a devise for de facto HOA governments to escape Constitutional government; Reorienting the HOA board – fair elections; HOA Common Sense, No. 6: Fair and just hearings

And furthermore, “CIDS [HOAs] currently engage in many activities that would be prohibited  if they were viewed  by the courts as the equivalent of local federal amd Arizona governments.”  … Privatopia (1994), Evan McKenzie.

It is not too late for the Senators to meet their obligations to uphold the federal and Arizona Constitutions by passing HB 2052 into law.

Exhibit 1. HOA BOD campaign policies.

  1. Using email listings, electronic or websites of Neighborhood Representatives and Alternates, Charter Clubs, Interest Groups, community and specialty groups.
  2. Addressing a formal . . . Group (e.g., Neighborhood Representative, Charter Club, Interest Group, specialty group meetings, sports venues, etc.). However, a person’s right to free speech in casual conversations shall not be restrained.
  3. Participating in formal Q&A sessions and programs other than those sponsored by the . . . Election Team.
  4. Using Association facilities for campaign events for individual candidates.
  5. Removing other candidates’ campaign flyers from approved locations.
  6. Using the official . . . website, Facebook or Instagram social media accounts to promote your campaign or to use your personal social media accounts to defame or incite defamation of candidates, engaging in unkind innuendoes / slander / harassment at any time or in any setting.
  7. Posting campaign flyers on street signs, trees, light poles, motor vehicles, golf cars, lawns, windows, auto windshields, or in commercial buildings.
  8. Defacing approved campaign flyers.
  9. Using balloons, buttons, t-shirts, marked-up election ballot, etc. as campaign tools.
  10. Using advertising of any type (other than approved campaign statement and/or approved personal correspondence).
  11. Using multiple versions of campaign flyers at the same time.
  12. Placing flyers in mailboxes (against the law).
  13. Distributing campaign flyers outside the entrance of or in the restaurants.
  14. Distributing campaign flyers in common areas except as noted.

Countrywide political culture cause of HOA reform failures

On this morning’s talk show, political discussion addressed the questions of the  Republican Party policy of applying strong power in order to stay in office, and what is the percent of Trump supporters who are hard core followers – cultists.  Will these dogmatic people remain loyal to Trump and to the Republican Party after the events at the Impeachment Trial?

Materials describing the growing trend toward authoritarianism[1] in America is well documented and reliable information can be found on the Internet.[2]

There are some people [authoritarian followers] for whom the system of checks and balances are bothersome and annoying, and dislike the noise and chaos of democracy. . . . [Authoritarians] understand their role, which is to defend the leaders, however dishonest their statement, however great their corruption, and however disastrous their impact on ordinary people and institutions.”[[3]

Talmon hits the nail on the head when he writes that “Citizens of a totalitarian democratic state, even when aware of their true powerlessness, may support their government.”[4] 

 In “Part 1, The Cultural Dynamics of HOA-Land” of my HOA-Land Nation,[5] I present my analysis of  the forces at work dominating the politics within the HOA private government. 

Basically, the HOA legal structure and scheme is authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. The authoritarian nature of HOA-Land is masked by a thorough indoctrination that presents a false picture of the real estate subdivision as democratic, inappropriately named a community, simply because the members are allowed to vote, as meaningless as it is.

Getting back to HOA-Land, it becomes disturbing that the application of authoritarianism and totalitarian democracy philosophy seems to fit quite well. Too well at that! [6]

HOA Consultant

* * * *

The same dynamics at work in HOA-Land[7] are well evident in Impeachment Trial II of Donald J. Trump[8] and reveal the new political forces at work in all of America. The trial brief stated, among other things,

The only honorable path at that point was for President Trump to accept the results and concede his electoral defeat. Instead, he summoned a mob to Washington, exhorted them into a frenzy, and aimed them like a loaded cannon down Pennsylvania Avenue. (p. 75).

By the day of the rally, President Trump had spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result— and as had been widely reported—the crowd was armed, angry, and dangerous.  (p.2).

President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power. A President who violently attacks the democratic process has no right to participate in it. Only after President Trump is held to account for his actions can the Nation move forward with unity of purpose and commitment to the Constitution. (p. 5).

* * * *

Today’s politicos are talking about a third party with Trump as its leader, mainly from Republicans.  A Gallup survey[9] shows that there is no majority party in the US, counting Independents as a party: Republicans and Democrats are about 25% each and Independents now 50%.  (In Nov.  2016 it was 27% Republicans, 30% Democrats and, 40% Independents). 

It will be an interesting new US political scenery; what will happen who knows.

How many Republicans, government officials,  and the general public supporters of Trump remain loyal after the events of the Day of Infamy, January 6, 2021?  With Trump out of office, but able to run again, how much power will this authoritarian leader retain?  It seems the Congress, the WH, and Americans in general need to examine their moral positions and ask themselves, Did I do right? Did I do the honorable thing for America?

Notes


[1] Authoritarianism: favoring complete obedience or subjection to authority as opposed to individual freedom..

[2] See in general: Anne Applebaum, Twilight of Democracy: The Seductive Lure of Authoritarianism, Doubleday (2020); Amanda Taub, “The rise of American authoritarianism,” Vox (March 1, 2016); Bob Altemeyer, The Authoritarians, 2007.

[3] Id., Applebaum.

[4] J. L. Talmon, The Origins of Totalitarian Democracy, Penguin Books (1986, first published 1952).

[5] George K. Staropoli,  The HOA-Land Nation Within America, StarMan Press, 2019.

[6] George K. Staropoli,  HOA political dynamics: totalitarian democracy (2019).

[7] 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.  Latest estimate at this writing is that some 23% of Americans live in HOA-Land.

[8] Articles of Impeachment, H. RES. 24, (2021). See House_trial_brief;  Trump answer; House answer response.

[9] Party Affiliation, Gallup (Feb. 15, 2021.

Escaping the HOA cult environment

There is a mass psychology present in HOA-Land — a cult environment. Everyone is vulnerable to cult recruitment. The followers cannot be held to blame because of their deceptive recruitment. There is a lack of awareness and information in regard to how the cult truly works and how it motives people.

Escaping the conditioning and indoctrination that creates the cult  mentality can be accomplished through debriefing techniques. The goal of debriefing is to get the cult member to think for himself and re-evaluate his situation. Debriefing methods can include:

educating the cult member on thought-reform techniques and helping him to recognize those methods in his own cult experience

asking questions that encourage the cult member to think in a critical, independent way, helping him to recognize that type of thinking and praising him for it

attempting to produce an emotional connection to his former life by introducing objects from his past and having family members share their memories of his pre-cult existence

Read more at Cult behavior within HOA-Land; Rogue presidents: Trump and HOAs.  The reorientation and reeducation required to attain substantive HOA reforms can be found in A Plan Toward Restructuring the HOA Model of Governance.