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.
[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.
What do I mean by “rogue president”? I mean a president who does not know the law and doesn’t care to know it, or who knows the law and just ignores it. In either case that president is plain and simple an outlaw by functioning outside the law. Trump and rogue HOA presidents fit my description and are outlaws.
I have often wondered why communities, or at least the strong voice of a faction, government officials and legislatures have supported and collaborated with HOA presidents; just like we have witnessed on the national scene. And with their attorneys in full support! Obviously in pursuit of personal, self-serving agendas.
I’ve come to the conclusion that the HOA social and political dynamics are identical as we have witnessed on the broad national scale. I am not sure as to what came first, the chicken or the egg? To what extend has the HOA independent principality mentality and legal scheme contributed to the national scene? Or are the HOA dynamics just a reflection of the broader culture in America today?
To get a better understanding of the HOA dynamics at play, read:
Behold the power of the internet! Who says nobody pays attention to my words of wisdom? I quoted Yogi Berra in my November 5th FB post, “It’s not over until it’s over.”
Look what VP Pence had to say today:
“Told @VP Team Today, “it ain’t over til it’s over. . . and this AIN’T over!” Pence tweeted Monday from his Twitter account. “
Amazon books/eBooks has a category “Recommended Authors For You.” While in my Amazon Prime page, it appeared on-and-off when I viewed an author in the constitutional law category (Oct. 30, 2020). I am proud to say that my years of hard work has paid off this month with Amazon recognizing that I’m an author of note in this category. Apparently it selectively appears depending on your interest history.
I met Randy E. Barnett, the top-right author, and have an autographed copy of his book, Restoring the Lost Constitution. I also appeared on his Amazon author web page (Amazon randomly selects qualified authors for recommendations).
This commentary follows up on my plan to restructure HOA governance[1] that first requires addressing the attitudes and views of BODs, the members, and the public in general. The conditioning and indoctrination by the biased views of the national pro-HOA special interest entity must be de-conditioned by a program of reorientation.
Once again I provide valuable information on the proper functioning of HOA boards in serving their “constituents,” their members.
The management[2] of a country, a state, or a local government, including the private HOA association, is commonly known as politics. Politics is:[3]
“the practice and theory of influencing other people on a civic or individual level. More narrowly, it refers to achieving and exercising positions of governance — organized control over a human community, particularly a state.
“exercised on a wide range of social levels, from clans and tribes of traditional societies, through modern local governments, companies and institutions up to sovereign states.
“A political system is a framework which defines acceptable political methods within a given society.”
Managing a government disguised as a nonprofit association has its unique requirements and demands that, for the most part, have been ignored. The commonly found guidelines from the national pro-HOA lobbying entity speak to an authoritarian government with member interests and concerns being secondary to the survival of the association. It’s an unacceptable deviation from the intents and purposes of our constitutional government.[4]
First, let me address the requirements for the sound management of a nonprofit association. Drucker[5] focuses on the overall, broad purposes and responsibilities of the board of directors (BOD) or board of trustees.
The general term “nonprofit” does not apply to HOAs because it is not a business nor a public government, but “government controls.” The reality of the HOA association is that it controls as does a public government.
Drucker asks, what is the mission of the nonprofit? A mission statement has to focus on “what the nonprofit really tries to do.” It cannot be “a kind of hero sandwich of good intentions.” Strategies “convert intentions into action.”
Most HOAs, especially the smaller HOAs, do not have a sound strategy that addresses their mission, goals, and values. But the HOA has an explicit mission and purpose as set forth in the CC&Rs[6] and need to be revisited and made consisted with Drucker and Batts (see below).
Second, in an excellent book on the need for director orientation,[7] the author feels board orientation is lacking and instituting a guideline will improve the nonprofit’s mission and goals. In his succinct book, as applied to HOAs, Batt’s makes the following important points:
Key areas of board action are “strategy, oversight, and policy.” In keeping with Drucker, “boards and board members should not micromanage the affairs” of the HOA.
The BOD has “full and final authority” over the HOA association; they are “not merely advisors” to the manager, other wisely known as the CAM. It’s regrettable that all too often the BOD abdicates to the manager and/or attorney who often are members of the same business trade group advancing their own self-agendas.
There is “no individual authority” of a board member to act and the president can only act based upon the authority set forth in the governing documents. Most presidents act, especially in the small HOAs, without board approval.
There is a “duty of obedience” to the laws and governing documents that all too often is ignored by not only rogue BODs, but by BODs who falsely believe to do so is in the best interests of the HOA.
[2] Peter F. Drucker, “Managementis the application of a set of principles relating to the functions of planning, organizing, directing and controlling an organization to effectively achieve organizational goals,” The Practice of Management, Harper Row, 1954.
[6] See “Restructuring HOAs – intents and purposes,” supra n.1.
[7] Michael E. Batts, Board Member Orientation, Accountability Press, 2011. It’s a short, to the point, and easy to read paperback. Batts has over 25 years on nonprofit boards and has served on several Washington panels.
HOA Constitutional Government 