protected speech concerning HOA governance

Last month I urged  all HOA members to support Arizona’s HB 2158,

Many courts have referred to the Declaration of Covenants, Conditions and Restrictions (CC&Rs) as the HOA constitution.  Arizona’s HB 2158 is a second try (Arizona HB 2052 restores homeowner constitutional speech protections ) to prohibit restrictions on HOA members’ freedom of political speech with respect to HOA governance issues and matters.”

(Do you stand behind the US Constitution or your HOA ‘constitution’?)

The bill addresses the right of members to free political speech on matters affecting the governance of the HOA by specifying such rights and prohibiting HOA interference with these rights.  While the bill refers to “association-specific” signs, it is a giant step toward HOA democracy by creating a fair election and voting process, affecting procedures now dominated by the pro-HOA governing documents.

You can read the itemized “freedoms” here.  Just a few,

  • Defines an association-specific political sign as a sign that supports or opposes a candidate for the board or the recall of a board member or a condominium or planned community ballot measure that requires a vote of the COA or HOA owners.
  • Prohibits a COA or HOA from prohibiting or unreasonably restricting an owner’s ability to peacefully assemble and use common areas of the COA or HOA,
  • [prohibits] making any other regulations regarding the content of an association-specific political sign,
  • Allows an owner to invite one political candidate or guest to speak to an assembly of owners about matters related to the respective condominium or planned community.

The bill passed the House and will be heard all over again, as required by law, in the Senate this Monday, March 14th.  The Senate has always been a “stopper” of HOA reform bils; your continued, loud and clear support is necessary.

Email the Senate Government committee members NOW! 

Sonny BorrelliVice-Chairman
Sally Ann GonzalesMember
Theresa HatathlieMember
J.D. MesnardMember
Martin QuezadaMember
Wendy RogersMember
Kelly TownsendChairman

If familiar with the Legislature’s RTS procedure, sign on and make your voice via RTS, which is read by the committee members and made part of the record. Instructions on how to set up your RTS account can be found here.  It may look complicated but it simple, just fill in the boxes.  Your RTS can be used for any bill by just entering the bill number. 

Unfortunately, you must set up your account at a kiosk at the state capitol, after which youc can access your account from your home.

HOA “bible” ignores members’ property rights

An excerpt from the HOA “bible” that was the source of the HOA legal scheme and structure, and included appendices on model CC&Rs and bylaws (Appendices F, G, and H, pages 384 – 402). While over time minor changes have appeared in governing documents, they are for the most part, and in particular on fundamental issues, boilerplate covenants contained in the Handbook.

Note that no mention is made of the homeowner, the HOA member, whose property interests are at stake and the subject of the legal scheme. “Association officers,” as we have discovered, represent the association and not the personal property interests of the members. The members are there, it seems, to fund the HOA. It is a top-down governmental structure with little concern for protecting principles of democratic government.

A history of the institutionalization of HOAs

After 58 years, the public, the legislators, the media, and the HOA boards of directors and vast majority of members have remained quietly accepting HOAs as a private form of local government.

People could care less about the truth. People buy promises and dreams. They’ll do anything to avoid reality” (anonymous)

The above quote, reflecting human nature,  gets to the very heart of the HOA-Land problem. It applies to all HOA members throughout America.  In a sarcastic Nextdoor  post, the writer expressed his feelings that my posts presenting justifications for restructuring HOA-Land were, in my words too cute. He didn’t want “to be in an association that George had anything to do with . . . and take his trouble making rhetoric to other lucky people.”

I responded:

My HOA right or wrong! So what if it has violated state laws and the governing documents, and refuses to defend itself. So what! As long as the amenities keep coming and assessments stay low, I guess all is OK.”

I have high hopes that all HOA members will follow their conscience and do what is right for their community, their state, and for America.  The alternative is a rejection of our democratic institutions, our constitutional government,  and the principles and values that we, as Americans, stand for.  The alternative is an acceptance of the HOA-Land Nation Within America.

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!

The continuing saga of Bendt and public speech in HOAs

Earlier I had reported on Arizona homeowner Bendt who dared speak out and criticize her HOA president and BOD using social media, emails, and pamphlets among other statements. See HOA limited-purpose public directors and officers  and Limited purpose public HOA board; slander; AZ HB 2052. What courage and determination to fight against her HOA president and 2 board members who are attorneys.

 With all respect and encouragement I have supported her fight to defend  herself from accusations of defamation. In her appeal, which she lost, the HOA admitted that the president was a limited-purpose public figure with the acceptance that social media and that the HOA is a public forum;  with protected free speech in regard to matters of members’ concern and HOA governance issues. Bendt protested an election and alleged improper and wrongful acts by the president. The result was  a well calculated, in my view, personal defamation attack on Bendt to avoid the larger, broader aspects that protect members’ criticisms, with certain restraints.

Her defense has now moved on to the AZ Supreme Court, waiting for acceptance of her petition. Roughly less than 10% of supreme court petitions for review are accepted. Good luck to Bendt!  If accepted, then her case is scheduled for oral arguments and a decision in a few months.

 Stay tuned to this case of widespread importance to homeowner rights.

 BTW, homeowner protections contained in AZ HB 2052 are lost as the bill died in Rules committee, which is controlled by the leaders of the majority party.

 For the record, I am not a lawyer nor am I giving legal opinion or advice.