Organize, organize, organize, but organize your local HOA

I’ve come to realize that we, including yours truly, have gone about this national association all wrong.  The vast majority of HOA members have grievances against their own HOA and some reach out to broader issues like rights and constitutional protections only in regard to their personal HOA problem.  That is the chief reason for failing to organize at a state or national level. So, let’s face reality and deal with it.

My initial thoughts take me to [My Association] Council of HOA Members that functions in opposition to the board as a true member organization, as a shadow government with certain legal rights.  It would be free of director/officer obligations under state laws and the CC&Rs that favor the HOA board.  HOA directors or officers are not accepted as members. Think in terms of the HOA being a business corporation, like we are being told that they are, and the Council would be equivalent to the member organization in contrast to  management.

They would have legally protected rights to organize, negotiate living conditions (affecting the governing documents, and to propose its own governing document amendments that must be put forth for a vote of all the members. These protections are necessary to get around the HOA attorneys’ “working with the new laws” advice that is designed to avoid the intent of the law – finding loopholes in other words.  It would serve as a check on the abuses of HOA boards.

The HOA could not legally interfere with campaigning for elections or on issues, or with the right to hold meetings on and within HOA facilities, or with the use of the HOA membership lists, etc.  And most importantly, in the event it gets corrupted, the Council can be dissolved by a 2/3 vote without the 20 or 30 year wait period found in the CC&Rs. But the members must stand up and act under the protection of the required new legislation, which must address retaliation against Council supporters.

Of course, legislation would be needed, as was needed to protect workers in the 1930s.  You can call it unionization or the establishment of an HOA “political party.” These Councils would fit the bill.  Of course, a broader state organization would be needed to provide guidance and assistance to the councils – can’t have them running amuck because they do not understand what must be done in order to accomplish their agendas. 

SB 1454: Machiavelli at work in the AZ legislature – Part 1

Part 1. Rep. Ugenti, Senator Griffin and lobbyist Sandquist 

(See Part 2).

Back in July I commented about SB1454 and wondered whether the Constitution or Machiavelli was alive and well in the Arizona Legislature.  In the subsequent two months I’ve come into possession of additional information on the events surrounding SB 1454 and its predecessor, HB 2371, and the underhanded manner in which it became an unconstitutional law. 

This post elaborates on the above commentary, which should be read first as it provides background information. This post also provides insight on how a legislature really functions, and undoubtedly how your legislature functions with respect to HOA legislation.

Furthermore, for a better understanding of the events the reader should view my video of the HB 2371 hearing before Senator Griffin’s GE committee.  It includes some interesting statements between Rep. Ugenti, who sponsored HB 2371, and Griffin; and between the HOA manager association lobbyist and Griffin. (The lobbyist’s statements begin at 9:13 into the 11 minute video). 

Please pay attention not only to their words, but to their body language as well. Listen to their arguments, but closely examine what is being said “between the lines.”

 

A.        Representative Ugenti

The March video of Senator Griffin’s hearing shows a perky Ugenti exuding confidence. She makes use of the special interest mantra, “stakeholder,” and states how all the stakeholders met and agreed upon the bill. She basically tells the committee that they are vendors (“stakeholders” refers not to homeowners, but to all those vendors who are making money off the HOA and off the homeowners).  The problem is, is that these vendors are daring to set legislation affecting the rights of homeowners that serve their own agenda.  Yet no committee member asks, “Where are the homeowners?”

Ugenti stated that each year there was “a plethora of personal HOA legislation”[1] and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation. Ugenti also said that she “felt very responsible to the stakeholders.”

 

B.        Senator Griffin

Senator Griffin is also the Senate President Pro Tempore, second in line in the leadership hierarchy. The AZ Legislative Manual states that, “the chief duties of these officers are to preside over Senate and House proceedings and to otherwise assume the duties of the President and the Speaker when they are absent from the Legislature.”  

Griffin played a role in two separate incidents.   The first, see (C) below, is her withdrawal of an amendment to HB 2371, thereby allowing HB2371 to go on the Consent Calendar. This calendar leads to a direct vote by the Floor without further debate by all the representatives. However, it was objected to being on the Consent Calendar, which forced the bill to be debated by the Committee of the Whole (COW).  The bill was never debated and never came to a vote; it died in the Senate.

Second, having faced defeat in her bill Ugenti once again obtained the co-operation of President Pro Tem Griffin. Griffin added the failed HB 2371 HOA amendments to HB 2518 (Rep. Olson was the Sponsor), now before the Senate.  The bill passed the Senate and was sent to the House where a Conference Committee was recommended – the House did not accept the Griffin/Ugenti amendment.  This time, the House failed to hear the amended HB 2518 and it, too, died along with Ugenti’s HB 2371 HOA amendments.[2]

  “The role of morals in politics is mainly to cultivate illusions . . . politics is merely appearance and morality is merely pretense.” (“Machiavelli and America,” Hadley Arkes, p. 104, The Prince (Yale University Press, 1999)).

 

 C.       Jeff Sandquist, AACM lobbyist

At the end of the above mentioned video (see Part 1), Jeff Sandquist, lobbyist for the Arizona Association of Community Managers (AACM) addressed the committee.  AACM stood to gain much from HB 2371, which would allow its members to represent HOAs in small claims court and before administrative law judges at OAH (Office of Administrative Hearings).  State certified legal document preparers (paralegals) are not allowed this right. There were no provisions in the bill for licensing, training, or educating property managers to adequately represent HOAs. Nor equal representation for homeowners.

Note the very friendly dialogue between Sandquist and the Chair, Griffin, which is out of order for a committee hearing.  “Tell your Mom hello for me.” Griffin mentions that making an amendment got her to see her “buddy” Sandquist.  He thanks her for not offering her amendment.

Sandquist also vaguely spoke about how the courts would like to see a provision moved to another section, implying an acceptance by the courts. It also implies a recognition of a separation of powers issue on granting HOA managers representation rights.

Two days after filing the complaint, about a month after the Governor signed SB 1454, a Supreme Court Rule 31 change was requested seeking an exception for HOA managers to be able to represent HOAs in small claims court (still pending).

[1] I digress. My emphasis reflects, to good extent, homeowners failing to see the broader picture beyond their HOA problem, such as raising substantive issues of constitutionality. Ugenti is saying that homeowners don’t really understand the problems with HOAs, which only the HOA industry special interests can solve. It is evident that this is the view held by all state legislatures across the country. Homeowners have failed to deal with this reality.

[2] In my 13 years I have seen isolated cases in various legislatures in different states where the right and ethical action was taken and legislation was defeated or passed as appropriate, as we see here with these 2 bills.  But, on the whole, far too few.

SB 1454: Machiavelli at work in the AZ legislature – Part 2

Part 2 – UPL violations and “HOAS” in the title.

(See Part 1).

E.         Sanctions against HOA managers violating UPL

In spite of several emails sent to Rep. Ugenti, the Senate GE members, and the public in general there was no mention in the public hearings about the actions taken by the Arizona Supreme Court document preparer board in 2012 regarding the unauthorized practice of law, Supreme Court Rule 31). (See Arizona’s HB 2371 empowers unlicensed HOA property managers to avoid UPL).  I refer to the State Bar UPL Advisory Opinion, 12-01 and the decision holding AAM, a AACM and CAI member, to have repeatedly violated UPL.  (Supreme Court Board of Legal Document Preparers v. AAM, LDP-NFC-09-L094 and LDP-NFC-10-L026). Rather than seek remedial legislation SB1454 and HB 2371 sought to exempt HOA managers from UPL.

The illusion and appearance that all is well and that no stakeholder or legislator was aware of these actions was successful. 

 

F.         Arizona Capitol Times showing “HOAS” in SB 1454 short title

Finally, the weekly Arizona Capitol Times (ACT) covers goings on at the capitol and produces an online LOLA Report listing the short and long titles of all the bills. Its LOLA shows “HOAS” in the short tile of SB 1454. It states that the info is taken “from Arizona Capitol Reports reporters and records and from state and other databases. Bill-tracking information is updated continuously during legislative sessions.”   But, the official ALIS public access to legislative bill information does not show a short title with “HOAS.”   Who, when, and how was “HOAS” removed from the short title?  And why was it removed?  Surely ACT had no motive to change ALIS to add “HOAS”, and would not dare to do so.

Curiously, the AACM website under Legislative Update shows the same short title as from LOLA, as AACM states that’s where it got the info.  Why wasn’t this called to Ugenti’s attention, or did nobody notice?  Yet, there’s an addendum tacked on to the title, in all caps, “AS SIGNED BY GOVERNOR,” which could only come on June 20th or later with still no correction to reflect the official ALIS version.  Why not?

It has come to my attention that Jeff Sandquist, AACM lobbyist, explained that the state’s position for settling the constitutionality lawsuit was because it wanted to save portions of the bill that it thought was more important.  He seems to be aware that if the court declared the entire bill unconstitutional the initial SB 1454 provisions dealing with Elections would also be invalidated. However, by leaving off “HOAS” in the title the State could argue, if indeed the “plot” was discovered, as it was, that only the second part of Section 13 of the Constitution applied. This would only invalidate the HOA provisions. And so it happened. 

Was this the plan for removing “HOAS”?  Was this the plan for getting Senator Yee’s approval for attaching HB 2371 to her bill, SB 1454?  That her original bill would survive? Recall that Rep. Olson apparently didn’t approve of the Griffin attempt to add HB 2371 to his bill, HB 2518, and it died.

So I argue SB1454 was rushed through in the final hours of the night on the last day of the session, in the midst of attention focused on the budget and Medicare issues. The session ended just before 1:00 AM on the 14th.

“The founders understood that the principal mission of government was to secure people in their natural rights — to protect them against the lawless private thugs as well as of ill-intentioned legislators.” (“Machiavelli and America,” Hadley Arkes, p. 145, The Prince (Yale University Press, 1999)).

The arguments and events presented here make a case for a frustrated Rep. Ugenti who, in an act of desperation, intentionally violated the Arizona Constitution and House Rule 16(D).  The Legislature cannot sit idly by and allow a flagrant violation of the Arizona Constitution to go unpunished. It must send a message that such ardent belief in a bill does not allow for the law to be broken and that the end does not justify the means. 

I have urged the Arizona Speaker of the House and House Ethics Committee to bring disciplinary charges against Rep. Ugenti and to seek her expulsion under House Rule 1. Many questions remain unanswered.

AZ Rep. explains failure of HOA reform legislation

I feel that my Footnote 1 from an upcoming commentary on SB 1454 should stand by itself. Here’s the paragraph and the Footnote.

Rep. Ugenti stated that each year there was “a plethora of personal HOA legislation” and tried “to spare the [committee] members the constant agony of many personal pieces of HOA legislation,” as contrasted to the industry legislation.

 Footnote 1.  I digress. My emphasis reflects, to good extent, homeowners failing to see the broader picture beyond their HOA problem, such as raising substantive issues of constitutionality. Ugenti is saying that homeowners don’t really understand the problems with HOAs, which only the HOA industry special interests can solve. It is evident that this is the view held by all state legislatures across the country. Homeowners have failed to deal with this reality.

A good part of this failure must be laid on the leaders of the homeowner rights advocacy movement. The leaders who appear, while paying lip service to constitutionality issues, to have failed to provide the necessary and adequate guidance and direction to accomplish HOA reform legislation.  Instead, take for example the recent SB 1454 post and comments on the Privatopia Papers where portions of just one news article are quoted. The quotes indicate that the plaintiffs had “done wrong to homeowners” by winning their constitutionality challenge. The challenge was against certain actions taken by a rogue legislator with respect to an HOA bill. The balancing and explanatory parts of the article were not quoted.

Fred Pilot, a long term participant in HOA reform issues commented about “So does this mean local governments can continue to utilize CID mandates?”, which is totally irrelevant and non-applicable to the victorious lawsuit.  Or to his biased quote from the article.  “What has “CID mandates” got to do with the article?  And attempts to clarify the matter as to the implied, “the plaintiffs have harmed the homeowners when they won”, resulted in their non-publication by the owner, Evan McKenzie.

Yet, McKenzie wrote that it was a fair question deserving an answer, but apparently not as a comment on Privatopia Papers. He wrote “my understanding is that SB 1454 . . . prohibited municipalities and planning and zoning commissions from requiring developers to create HOAs.”  McKenzie lacks the understanding that these provisions were twice killed in this legislative session; and that Ugenti had to underhandedly get the bill passed in the wee hours of the morning on the last day of the session.  But, I guess that has no bearing in this matter. It was only us evil plaintiffs who done homeowners in, under the principle that the end justifies the means.

 Not a word about how this lawsuit sent a message to pro-HOA legislators and lobbyists that they can’t get away with such flagrant abuse of the laws. Not a word. But the charges stand, unanswered on the Privatopia Papers.

 Unless the leaders get their act together, the arguments and implications of Ugenti’s quote above will continue to dominate attempts at HOA reforms.

Disciplinary action sought against AZ legislator in SB 1454 HOA amendments

This past Wednesday I asked the Arizona Speaker of the House and House Ethics Committee to commence disciplinary proceedings against Rep. Ugenti for her role in causing SB 1454 to be declared unconstitutional.   I also asked that a vote be called under House Rule 1 to expel Rep. Ugenti for the manner in which she added her failed HB 2371 HOA amendments to SB 1454 in the waning hours of the legislative session.

In addition to the legislative records, my argument was supported by the Statement of Facts in the complaint, Staropoli and Brown v. State of Arizona, and the statements made by our attorney in his July 23rd appearance on Horizon PBS.  There are five documents found on the legislative public info website, ALIS, that warn legislators against placing more than one subject in a bill.

I further pointed out the need to look into why there are two different versions of the Bill Summary for SB 1454, one with “HOAS” in the title and one without.  The logical conclusion is an intentional removal of the word from the title.

I concluded my email to the Speaker with,

The Legislature cannot sit idly by and allow a flagrant violation of the Arizona Constitution to go unpunished. . . .  It must send a message that such ardent belief in a bill does not allow for the law to be broken and that the end does not justify the means.