Tag: CC&Rs

AZ ethics chair finds no violation by Ugenti in SB 1454

See-hear-speak no evil
See-hear-speak no evil

In response to my petition[1] to the AZ Speaker of the House and House Ethics Committee to bring disciplinary action against Rep. Ugenti, I received a short, late evening response from the Ethics Committee Chair, Rep. Lovas.  The terse response amounted to “the act of offering an amendment on the floor does not rise to the level of disorderly behavior for purposes of Ethics Committee jurisdiction. . . . The Ethics Committee will not be taking the matter up further.”  This was a strict interpretation of the meaning of ethics, which under the House Rules deals only with financial issues. It says that a violation of the Arizona Constitution by an elected official is not an ethical concern.

Where ethical restraint is lacking, there can be no hope of overcoming problems. (The Dalai Lama).

 

Very much disappointed in Rep. Lovas’ response, I replied in a little more detail.

 

Rep. Lovas,

I appreciate your late evening response to my emails seeking disciplinary action against Rep. Ugenti for her conduct in submitting her waning hours amendment to SB 1454. The strict interpretation of the committee’s jurisdiction holding that Ugenti’s conduct was not “disorderly behavior for purposes of Ethics Committee jurisdiction” is disturbing. How can a violation of the law by an elected representative, a legislator, not be viewed as unethical? The bill with Ugenti’s amendment was stipulated by the Legislature (per paragraph 22 of the Stipulation) to have violated the Arizona Constitution’s prohibition against bills with more than one subject. And the court so invalidated her additions.

I am disappointed in your response. You treat this incident as “just another day at the office” and this is the way the Legislature works. That if a legislator can violate Section 13 of the Arizona Constitution, so be it. And if caught in doing so and a court invalidates the effects of the legislator’s actions, the attitude of the Ethics Committee seems to be, Oh well. The legislation is invalid. Let’s move on to next year. It smells of, if you can get away with it, good. If not, don’t worry since we will take no action.

 (I am well aware of Randall Gnant’s comments in his guide for the public, From Idea . . . To Bill . . . To Law, p. 51-52, on the not infrequent disregard of constitutionality of legislation by the Legislature).

I do not understand how Ugenti’s actions do not constitute grossly unethical conduct. It sends the message that, yes, this is the way it is. That the Legislature, as sovereign of the State of Arizona, can do no wrong. Sorry, I cannot accept that “this is the way it is.” The people have a “social contract” with the State of Arizona government that binds both parties, which, by your decision, shows that the Committee has chosen to ignore its duties and responsibilities under that contract, the Arizona Constitution.

I understand that much of what I had described in my case for disciplinary action is considered as that’s the way legislation is accomplished, that’s the way the legislature works.[2] Nothing wrong. However, in your response you categorize and restrict Ugenti’s action as a simple filing of an amendment. You mention nothing about the bill was her third and last ditch attempt to get it passed into law. Or that it was in violation of the Constitution and House Rule 16(D), which prohibits any such bill. House Rule 1 says that a violation of these rules can result in disciplinary action and even the expulsion of a legislator. You trivialized the entire incident.

Let us understand the gravity of Ugenti’s knowing and planned violation of the constitution. In the late 1930s President Roosevelt attempted to get legislation passed to pack the US Supreme Court in order to accomplish goals that he believed were for the good of the people — not the party, not the special interests. He was opposed by the US Senate that believed that the President was tampering with the balance of the separation of powers, which was not good for the country. In this incident, no laws were broken and no rules were violated in spite of the overwhelming controversy and seriousness of the legislation.

 More recently, the US Supreme Court in its Kelo decision found justification for interpreting “public purpose” the same as having the eminent domain meaning as “public use.” No laws and no procedures or rules were broken. All was legit and was viewed as in the best interest of the country. But, sadly, not with SB 1454. Not only was a Rule broken, but the Arizona Constitution as well. And the evidence I put forth shows the heavy hand of special interests, the HOA “stakeholder” cabal. (There is more that I have not yet released). Yet, no evil is seen by the Ethics Committee and that no investigation into the affair is warranted. What message does this send to the people of Arizona? What does it say about the State of Arizona?

 I cannot stress the need for action by the Ethics Committee to restore the faith and confidence in the Arizona Legislature. I ask that the committee take whatever action is appropriate and necessary for the House to commence disciplinary charges per House Rule 1. Ugenti must not be given a clean bill of health, a pass, a walk to try again another time. Disciplinary action will also serve as a deterrent to other so inclined legislators.

Please urge the Speaker to undertake disciplinary action on behalf the people, for the good of Arizona.

 

George K. Staropoli

 

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. 

AZ Attorney General admits SB 1454 HOA to be invalid and without effect

Pursuant to a consent agreement with the State of Arizona,[1] the Attorney General’s office admitted that SB 1454 violated the AZ Constitution and sections of SB 1454 relating to certain HOA statutes to be invalid and without effect on September 13th.  SB 1454 violated Article 4, Part 2, Section 13 of the Arizona Constitution.  On July 19, 2013 plaintiffs George K. Staropoli and William M. Brown had filed suit against the State of Arizona, CV 2013-009991,[2] seeking a declaratory judgment that SB 1454 violated the Constitution.

“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 invalidated Sections are:  2, 3, and 15 – 17, 19 – 21 of SB 1454 (Ariz. Sess. L. Ch. 254). These sections affected the following Arizona Revised Statutes:  9-461.15, 11-810, 22-512, 33-1250, 33-1260.01, 33-1261, 33-1806.01, 33-1812, and 41-2198.01.  We believed that Section 18, adding ARS 33-1261(E) to the Condominium Act, is about political signs and relates to public elections. We agreed it is covered in the title subject of “elections” and is a valid statute.

Particularly disturbing was the amendments that granted special powers to HOA managers to represent HOAs in small claims court and in OAH hearings, powers that state Certified Legal Document Preparers do not possess. The litigation rights of homeowners were put at a disadvantage because they could not also have an untrained and unlicensed third-party represent them.

Many may believe that SB 1454 had HOA amendments that would benefit homeowner rights and this lawsuit removed these benefits.  The loss of these perceived benefits lies not in this victory, but in the acts of Rep. Ugenti who is responsible for attaching, at the last legislative session, her defeated HB 2371 to SB 1454.  SB 1454 now became a bill with two subjects in violation of the constitution.[3]

The consent agreement will become binding pending acceptance and signing of the order by the Superior Court judge, expected before the 13th.

I would like to thank Executive Director Tim Hogan, Staff Attorney Joy Herr-Cardillo, and the Arizona Center for Law in the Public Interest for their outstanding support of the people.

 

References

What is this “association law” thing all about?

In the TimesDispatch internet column, “Housing”, two attorneys talk about “association law” (Mercer, Trigiani are guiding voices in homeowner association law). They are real estate attorneys. 

He [Mercer] and his business partner, Lucia Anna “Pia” Trigiani, with offices in Alexandria and Richmond, are considered the top Virginia lawyers in their field, their peers say. . . . “They are a major force in what goes on with association law, and they are equally good at what they do,” [a real estate attorney] said.

But the featured spokesperson, Trigiani, is not identified as a CAI member who received an outstanding person award this past April from CAI, the national lobbying organization for HOAs, the Community Associations Institute.

Lucia Anna “Pia” Trigiani, Esq., a principal with the Virginia-based law firm MercerTrigiani, received one of CAI’s most prestigious honors April 19 at the organization’s 2013 Annual Conference and Exposition. (Trigiani, Dyekman Among Members Honored by CAI).

What is not made clear is just what association law is?   It is not a recognized classification of law, but one promoted by the legal-academic aristocrats and CAI.  (“Community Association Law Seminar, Jan. 23–25, 2014 | Las Vegas, NV.”)  The massive Restatement of Law series consists of some 96 volumes covering 26 categories of law, but no “association law” category.  In fact, laws pertaining to HOAs and covenants/servitudes, the legal basis for HOA authority, can be found in the Property: Servitudes series.

From my research into HOAs reading law encyclopedias, treatises, journals, court cases, legislation, articles and books — I’m not claiming to be an expert, but well read — association law appears to be a conglomeration of constitutional, property, contract, corporation and tort law.  These laws are cherry-picked to support the legitimacy and validity of the Declaration of Covenants, Conditions and Restrictions (CC&Rs) that is the fundamental basis of HOA legal authority.  Whatever aspect of each of these laws that serves to support HOAs is incorporated into association law. Where there are conflicts with laws or contrary laws they are ignored, or association law is declared superior, or first modified and then incorporated into association law. 

Attorneys like to promote association law as sui generis, or a unique thing in a class of its own not subject to other laws.  This new thing, this association law, is an attempt to establish as legitimate and binding a new set of laws that conflict with and repudiate the Constitution.  Laws that distinguish and repudiate the fundamental principles of our system of government and principles of justice, derived from the organic law of this country – the US Constitution, its Bill of Rights, and the Declaration of Independence.  And for obvious reasons — for domination, power and control.

In his seminal book, Privatopia: Homeowners Associations and the Rise of Residential Private Government, Even McKenzie wrote in 1994,

HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments. . . . The balance of power between the individual and the private government is reversed in HOAs. … The property rights of the developer, and later the board of directors, swallow up the rights of the people, and public government is left as a bystander.

And this is the purpose in establishing “association law” — to avoid constitutional protections, to deprive people of their life, liberty, or property  without due process of law, and  to deny homeowners of the equal protection of  the laws that apply to all public bodies.

 

See  The questionable role of HOA attorneys

The questionable role of HOA attorneys

In my view after 13 years dealing with HOA attorneys, and especially those who are members of CAI across the country, they are lawyers first and foremost and not advocates for a cause.  They deal with the laws and statutes and CC&Rs as they are, having had a profound role in their creation.

An advocate fights for a cause, or at least, for justice and fair play against unjust, unfair and illegitimate laws.  He sees a societal wrong and seeks to redress these ills of society.  The HOA attorneys defend private corporations without a moral or ethical perspective, as they insist is the law. They do not concern themselves with the de facto acts of HOAs as private governments.   Therefore, under the CC&Rs contract, concern for individual rights and freedoms, those basic American values, are of little importance.

Over the years I’ve seen attorneys cross the line and act in collusion with the wrong-doing of HOA boards, even advising how “to deal with the new laws” that grant homeowner rights and freedoms.  They have proposed suggestions that are in keeping with the letter of the law while openly unreasonable and designed to give the homeowner a “hard time.”  A prime example, offered by the current president of CAI’s College of Community Association Lawyers (CCAL), in his guidelines[i] on videotaping board HOA meetings, as permitted by Arizona’s ARS 33-1248 and 33-1804. 

I’m sorry, but I must admit that my opening statement above is wrong. The CAI HOA attorneys are indeed advocates, advocates for HOAs under the banner, as stated on CAI’s home web page “Building Better Communities”[ii] and “responsible citizenship.” The banner is quite explicit as stated on the Arizona chapter’s web page, “Creating Better Communities Through HOA’s”[iii]  (sic).

When their acts and actions before state legislatures are contrasted with their lofty public relations materials, the average person gets a clear picture of the better America being advocated by CAI attorneys.  It’s an America not based on the basic American values that created this great nation, but on authoritarian private governments permitted to operate outside the protections of the US and state constitutions.  And those protections were established to protect the rights of the people, and not private governments.

In contrast to the intents and purposes of HOA “constitutions,” America took pains in its Constitution to protect individual rights and freedoms:

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.[iv]

 

Notes

[i] Videotaping Board Meetings – “Reasonable Rules” (http://www.carpenterhazlewood.com/resources/enews/2011/videotaping-board-meetings-reasonable-rules, April 29, 2011).

[ii]Celebrating its 40th anniversary in 2013, CAI provides information and education to community associations and the professionals who support them. Our mission is to inspire professionalism, effective leadership and responsible citizenship. (http://www.caionline.org/Pages/Default.aspx, July 21, 2013).

[iii] CAI-Central Arizona Chapter (http://www.cai-az.org/home.html, July 21, 2013).

[iv] The Preamble to the Bill of Rights.