Tag: CAI

The influence of HOA special interests on an AZ legislator — SB 1454

First-termer idealism and the awakening

Michelle Ugenti arrived at the Arizona Legislature in 2011 riding in as a Clean Election Candidate, meaning she took no special interest money.  On her web page she quotes from the Arizona Constitution, “All political power is inherent in the people, and governments . . . are established to protect and maintain individual rights.”

It appears from her comments about her first term that she ran right into the reality of how bills become laws:

The following two years [after being elected] have taught me what happens when ideas and principles meet head-on not just with competing beliefs but also with individual self-interest, whipped into a frenzy by forces armed with money and power. 

She’s talking about the special interest money and the influence it has on legislators.  Still, with a positive outlook facing her re-election in 2012 Ugenti writes on her web page, “I hope that my constituents find me faithful to . . .  preserving our rights and freedoms.”

But, something seems to have happened to Ugenti upon her re-election in 2012.  She seems to have found and adopted the way and the means to make a name and to advance herself in politics.  She talks of hard politics, of when to compromise and when to negotiate, and of being successful and effective.

It is precisely this delicate balance of knowing what to give and what to fight for that makes an effective legislator. I believe I am successful because I have the integrity and courage to examine each issue and stand wherever my conscience and conviction demand I stand.

The lure of the special interests

In 2013 we saw Ugenti’s tenacity to fight and stand by her conscience in regard to her HB 2371 HOA bill and incorporating this failed bill into SB 1454. It ran afoul of the Arizona Constitution and House Rules. She showed her conviction before the Senate GE committee hearing on HB 2371 and clearly demonstrated her newly found path to success as a legislator – by advancing the agenda of the HOA “stakeholders,” the special interests who make money from servicing HOAs.  And CAI is one leading “stakeholder.” (Stakeholders are not homeowners who are excluded from such meetings. And the legislators well know it.)

At that hearing 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. She also said that she “felt very responsible to the stakeholders.”   That was in March. In July a lawsuit, Staropoli v. State of Arizona,  was filed against the State for an unconstitutional SB 1454. The Attorney General’s office and court agreed, removing Ugenti’s HOA provisions.

Yet, the Arizona Legislature sees no wrong in her conduct leading to the filing an amendment from the floor and refused to discipline her. Ugenti’s integrity and conviction is examined in SB 1454: Machiavelli at work in the AZ legislature – Part 1 and AZ House ‘circles the wagons’ in defense of pro-HOA legislator.

CAI stakeholder support of Ugenti

In October 2013, stakeholder and national HOA lobbyist CAI praised Ugenti for her efforts to advance HOA interests, as CAI sees them.  In an article in the Fall 2013 Community Resource magazine, AZ lobbyist DeMenna wrote, echoing Ugenti’s view that only  stakeholder legislation has any value:

“Under the leadership of Representative Michelle Ugenti . . . a working group was established to address HOA-related issues advanced by legitimate stakeholders. . . . and Representative Ugenti personally led the effort to ensure that only sensible and functional proposals were considered. CAl played a critical role in this process, although some compromises were required. . . . In the end . . . Representative Michelle Ugenti, is to be commended for her leadership in this area.

And in the AZ CAI chapter’s email, Notice to CAI Members **Very Important-Please read!**, Oct. 18, 2013, the AZ chapter wrote, again echoing Ugenti’s views,

Representative Ugenti . . . is instrumental in the development of HOA policymaking. Representative Ugenti’s stakeholder meetings, formed in effort to tackle the growing number of HOA bills introduced every session, are critical in defeating shortsighted proposals.

The email went on to announce a fundraiser for Ugenti:

Fundraising Reception in support of REPRESENTATIVE MICHELLE UGENTI.  Please make checks payable to: MichelleUgenit.com [sic].  If you are unable to attend, you can mail your contribution to CAI’s Arizona Lobbying Team: DeMenna & Associates. . . . Paid for by: www.MichelleUgenti.com.

The decline and fall of a legislator

What happened to Rep. Michelle Ugenti since her first term in 2011?  It appears she has serious issues of integrity and the demands of her conscience to fight for her beliefs. She has fallen away from those ideals and values of “preserving our rights and freedoms”; and that governments “are established to protect and maintain individual rights.” The  authoritarian, private HOA government has no legal obligations “to protect and maintain individual rights” as does our Constitution with its Bill of Rights.

Apparently, she has succumbed to “individual self-interest, whipped into a frenzy by forces armed with money and power.” Her conscience and convictions have led her to advancing special interest agendas and to crossing the line and violating the Arizona Constitution.  

Obstacles to effective HOA reform legislation

Jim Lane, a NC HOA reform activist and website owner of Alliance of Homeowners Associations and Owners, asked the following HOA reform questions on the LinkedIn HOA group:

What are the three biggest “issues” (be specific)? What is standing in the way of resolving them? What should Owners be doing? How?

A good understanding of the issues surrounding HOA reform legislation requires expanded answers to these questions.  There are too many dogmatic mantras being espoused that are not supported by any convincing evidence, like “move out, “no contract interference,” “you agreed to be bound,” etc.  I can only provide an outline of my answers to these questions.  A deeper understanding can come from a study and analysis of my Commentaries over the years since 2004. (A keyword search is available).

First question: Essentially, I have identified 5 fundamental areas that require substantive reform legislation; legislation, if enacted would produce a trickle-down effect on many of the more serious issues confronting homeowner rights, freedoms, privileges and immunities allegedly waived or surrendered by homeowners.

They are:

  1. HOA foreclosure (cruel and unusual punishment; suspect category)
  2. Lack of due process protections (eliminate HOA banana republic justice)
  3. No clean elections laws for HOAs (eliminate HOA banana republic elections)
  4. No penalties against HOA board violations (equal application of the laws; detriment serving as a check and balance on HOA board violations)
  5. Wrongful application of a valid consent to agree (misapplication of the domination of servitudes law over constitutional and contract laws to make the HOA legal scheme work)

A failure to attain these broad, fundamental reforms will leave homeowner advocates at the continued mercy and whims of their legislatures, who are all pro-HOA.

Second question:  The answer to this question will disturb many, many homeowners and HOA reform advocates.  First, the 40 year-old national lobbying organization, Community Associations Institute (CAI) has dominated state legislatures. CAI has advocated its personal agenda under the guise of making for a better America, and a fear mongering not to support reform advocates who will kill your HOA and cause a loss in your property values.[1]  And then there was the inappropriate mass merchandising of the defective HOA concept to generate profits for the HOA promoters.

Second, like the German people who allowed the Nazi party to gain control over the most cultural and scientific country at that time,[2] homeowners jumped at the carrots being offered by the mass merchandisers and ignored the stick of a decline in democratic institutions and constitutional protections.  Many believed that they were good people supporting what was good for the community and the state, just like the German people eagerly believed.

The denial of the reality of the HOA legal scheme is a common behavior when a person’s self- image is being destroyed or radically altered.  When one’s self-image serves as the basis of how that person sees himself to be, many owners accepting the reality of the HOA concept would be destroyed. Their reactions would be an outright denial to the point of irrationality.  To say that their cherished HOA is a wrongful legal concept that is not for the betterment of society is too say that they are wrongful people not working for the betterment of society.  And they will not accept that. They will not accept the fact that they, like the emperor in The Emperor’s New Clothes,[3] were conned so they will continue to ignore reality and live in denial.

We see this reaction when pro-HOA supporters are pushed to defend their positions and they cannot, so they react with, essentially, an I don’t care attitude.

Third and Fourth questions:  The homeowners must, themselves, face this reality and become enlightened.  They must unite and stop the continued influence of CAI on their legislature.[4]  The homeowners must become proactive to enlighten and change public opinion that HOAs are not the next best thing to Mom’s apple pie.

 

References

 

[1] There are existing laws in every state that would enable HOA to maintain their unique relevance to the subdivision in terms of private rules and amenities, etc., but would return HOA to our American system of government.  However, that would mean CAI would lose much of its dominance and influence over HOAs. See A proposal for the “Muni-zation” of HOAs; Stop developers from granting private government charters.

[3] The Emperor’s New Clothes, Mindfully.org (http://www.mindfully.org/Reform/Emperors-New-Clothes.htm), June 7, 2012.

NC CAI attorney joins Enlightenment Movement

North Carolina CAI attorney Michael Hunter joins the Enlightenment Movement in his Aug. 8 column on CharlotteObserver.com, The buck stops with HOA boards, not management companies.

It is necessary to obtain the affiliations of attorneys writing media columns as we know that CAI attorneys are biased toward the objectives of the national business lobbying organization, CAI. Just as people want to know if a person is a Republican or Democrat, or a liberal or conservative, it’s important to know the affiliation of HOA columnists so the message can be properly interpreted.

That is why this article is so surprising. A CAI member attorney dealing with reality rather than in promoting the CAI “party line”! If those homeowners would only follow the rules all would be OK. In his column, Michael Hunter says it’s the boards stupid, not the management companies and not the members, who have the responsibilities, duties and liabilities. He has become part of the Enlightenment Movement, along with several California CAI member attorneys if you read their websites and newsletters.

Advocates like Jim Lane in NC are the causes of this conversion, this acceptance of reality by CAI members. He has provoked, challenged, and confronted the opposition forcing a response or continued silence. The silence tactic is not working any longer, because there are too many outlets siding with Homeowner Rights Advocates for the advocate to be portrayed as a troublemaker or a malcontent as in the past.  The public and the media are realizing that advocates have legitimate grievances that have not been adequately addressed by state legislatures.

But, stand watch advocates, CAI Central is still spewing forth it propaganda, this time to Congress, CAI now seeks to lobby Congress on HOAs. CAI Central realizes it no longer controls the playing field and must extend its propaganda in defense of the growing Enlightenment Movement in the media.

CAI now seeks to lobby Congress on HOAs

Last month  in CAI Reacts[i] I warned about CAI’s long lobbying reach to sway the opinions of state legislators, but now CAI is seeking to sway Congressmen.  CAI is now in a campaign[ii] to influence Congress with its propaganda that HOAs provide an overwhelming public service, are highly supported by HOA members, and are preferred by the public. “Community associations are governed by neighbors and are often misunderstood.”[iii]  If there are no opposing voices, so will Congress be swayed and with join state legislatures in supporting pro-HOA legislation.

In CAI Reacts I wrote about the effects on state legislatures, which is applicable to Congress:

This tactic by CAI has ominous consequences for HOA reforms in every state! It becomes extremely important that advocates and homeowners in every state seeking redress of HOA problems form an advocacy group to inform the public, the media and their legislators of their views. As I have long argued, advocates must, even more so now, confront, challenge and expose CAI propaganda. They must also advance quality reform legislation.

The latest attempt to influence elected officials comes in the form of urging its members to write their Congressmen to support CAI’s FEMA position, which contains a wealth of pro-HOA propaganda from its biased surveys.[iv]  Here are some of the points provided to guide members in their meeting with a Congressman:

Associations ensure that the collective rights and interests of homeowners are respected and preserved. Association leaders seek an effective balance between the preferences of individual residents and the collective rights of all homeowners.  [Do you think that your Congressman would catch the distinction between “collective rights” as in socialism and “individual rights” as in a true democracy?]

 Association homeowners choose where to live and accept a contractual and ethical responsibility to abide by established policies and to meet their financial obligations to the association. [Nothing is said about “free choice” or an adhesion contract with implied and absent waivers of constitutional protections].

Association homeowners have the right to elect their community leaders and to use the democratic process to determine the policies that will protect their investments. [Nothing is said about the appearance and illusion of democratic election procedures and the absence of clean elections protections.]

 Without an organized and strident national voice in opposition, be prepared for a rewrite of “This is America: The New America of HOA-Land.”  Many of my Commentaries can be used to refute CAI’s propaganda. Use them!  For example, earlier this year I wrote here and as a comment on Privatopia Papers,[v]

 

It’s time to bring unity to this country and end subdivision governance by HOAs that create independent principalities. The planned community development can remain under a democratic form of government subject to the Constitution. And that must come from Washington. It can start with hearings to air those constitutional issues that have been avoided by every state and court for far too many years.[vi]

 

References

 

HOA reforms, SB 1454 and the inner workings of the legislature

Arizona’s Rep. Michelle Ugenti amended a bill in an underhanded tactic to bypass the Arizona Constitution[i] in her determined and overzealous efforts to have special laws enacted for special organizations. Attorney for the plaintiffs, Tim Hogan, Executive Director, Arizona Center for Law in the Public Interest, explained the reasons for the complaint in his Arizona Horizon PBS interview.[ii]

In her interviews, Ugenti defended her amendment in terms of procedural legislative rules; my Staff said it was legal: “that the rules committee staff found her amendment to be germane to the original bill”[iii]  and “her additions to the bill are legal, if for no other reason than one of the changes does deal with elections.”[iv]    Her actions can be better understood in terms of the inner workings of state legislatures, so let’s examine the inner workings of the Legislature. 

The Bill to Law publication[v] of the Arizona Senate talks about the role of the Legislative (“Leg”) Council (my emphasis):

All proposed bills are drafted and prepared for introduction by the Legislative Council staff. Legislative Council may be requested to prepare a proposed bill draft by any legislator, by partisan staff at the direction of a legislator, or by direction from a committee of the Senate.

. . . .

Most importantly, legal staff in Leg Council may suggest changes intended to help the proposal pass Constitutional muster. For example, the Constitution (Article IV, Part 2, Section 13) [the very issue of the complaint] requires that, “Every act shall embrace but one subject and matters properly connected therewith…” If proposed legislation obviously covers two or more subjects, Leg Council will advise the sponsor that the bill must be trimmed, split into two or more bills, or face a potentially successful challenge on Constitutional grounds.

 The question remains: who told who?  And did Ugenti overrule the Legislative Council? Or, did the Legislative Council get it all wrong?  

And what about the Rules Committee, that functions as described in the Bill to Law publication[vi]:

Legislators on the Rules Committee, aided by advice from the nonpartisan Rules Attorneys, function as a sort of legal review panel for proposed legislation. Among other things, the Rules Committee reviews each bill for constitutionality . . . .  

It is in the Rules Committee that potential difficulties with constitutionality and form are worked out. In rare instances a bill is rejected entirely. Most often amendments are proposed to correct deficiencies noted by the Rules Attorney.

 In a surprisingly frank statement of the inner workings of the Legislature (my emphasis), 

It is not unheard of for proposed legislation to pass even though almost all parties know it will be ruled unconstitutional — sometimes there are political reasons for doing so. For the most part, though, a ruling by the Rules Attorney that proposed legislation is unconstitutional is enough to severely dim any chances of the proposed bill becoming law.[vii]

I guess the legislature “got caught with its pants down” with respect to SB 1454!  Or, is it a case of “The sovereign can do no wrong”?   I don’t think so under our constitutional system of government.

In regard to HOA legislation, the legislative inner workings are described in my latest Commentaries:

  1. CAI reacts to HOA Enlightenment Movement with targeted lobbying of legislators
  2. What is this “association law” thing all about?
  3. The questionable role of HOA attorneys
  4. SB 1454: crossing the line for HOAs

I raise the question once again: what was Ugenti’s motive for dogmatically and overzealously pursuing these HOA amendments?  Is she a diehard, true believer in HOA-Land?  Or, were there other factors that pressured or influenced her in her decision to sneak HOA reforms into SB 1454?

 

References

[iii] “Public interest group claims last-minute HOA bill is unconstitutional”, Arizona Capitol Times, July 16, 2013

[iv] “Lawsuit filed against Arizona’s new HOA law”, East Valley Tribune, July 17, 2013.

[v] “The Role of the Legislative Council,” From Idea ….. To Bill ….. To Law, State Senator Randall Grant (2000) , p. 29. (http://www.azleg.gov/alisPDFs/BillToLaw.pdf).

[vi] Id., “The Role of the Rules Committee”, p. 51.

[vii] Id., p. 51-52.