Frequent Referrals

Arizona Attorney General – Open Meeting Law Enforcement Team (OMLET)
The Arizona Department of Real Estate – Home Owner Association complaints

Frequently Asked Questions

Does the Ombudsman – Citizens’ Aide investigate complaints regarding matters related to the open meeting law?

Yes.  We investigate complaints regarding public records and open meeting law against state agencies, counties, cities and special districts.  The Arizona public access laws do not apply to federal agencies.

Does the Ombudsman-Citizens’ Aide investigate complaints regarding Home Owner Association open meeting law?

No. Homeowners Associations (HOA) are not subject to the Arizona open meeting laws.  Planned communities, including HOA, are regulated by Title 33, Chapter 16 of the Arizona Revised Statutes.  Specifically, A.R.S. § 33-1804 governs the open meetings of planned communities.  See Arizona State University’s “Foreclosure, Homeowners Associations, and Landlord/Tenant: Homeowners Associations” to learn more about HOA law in Arizona and for additional resources.

In 2011, the Arizona Legislature passed legislation providing Arizona homeowners (as well as condominium and planned community associations) a venue for resolving disputes.   These administrative procedures provide an alternative to the civil court system and do not limit the legal rights of the parties to further pursue matters.

In 2016, the Arizona Legislature passed legislation moving the Homeowners Association Dispute Process to the Arizona Department of Real Estate.  The Arizona Office of Administrative Hearings will accept all cases as referred by the Arizona Department of Real Estate, and schedule a hearing date before an Administrate Law Judge.

You may file with the Arizona Department of Real Estate to have your complaint heard before an Administrative Judge. The filing fee is $500 for one violation.  Please visit the Arizona Department of Real Estate’s Homeowners Association Dispute Process website for more information about the process.  If you have more questions you may contact the Arizona Department of Real Estate’s HOA Ombudsman here. You may also call the department at (602) 771 -7799.

 I filed an open meeting law complaint with the Attorney General’s Open Meeting Law Enforcement Team, should I file one with you too?

No.  If a complaint has been filed with another government agency with appropriate jurisdiction, we will defer to them to handle the complaint and any investigation.

What is a meeting?

A meeting is defined as a gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose, or take legal action. This includes any gathering, regardless of its label that falls within this definition. A.R.S § 38-431(4).

What is a public body?

A public body means the legislature, all boards and commissions of this state or political subdivision, all multi-member governing bodies of departments, agencies, institutions and instrumentalities of the state or political subdivisions, including without limitation all corporations and other instrumentalities whose boards of directors are appointed or elected by the state or political subdivision. Includes all quasi-judicial bodies and all standing, special or advisory committees or subcommittees of, or appointed by, such public body. A.R.S. § 38-431(6).

What is a quorum?

A quorum is a majority of the members of the public body unless otherwise provided by law. For purposes of computing whether a quorum is present, vacancies must be included unless otherwise provided for by law.

Where must public bodies post meeting notices?

The notice must be posted on its website and at the locations identified in its disclosure statement. An agency is required to provide a disclosure statement on their website that includes the location of their physical and electronic postings.  Agencies are permitted to post in more locations than those described in the disclosure statement.  However, the posting locations in the disclosure statement are the only postings that are considered for the Open Meeting Law’s notice requirements.  Please note the exceptions provided for special districts formed under Title 48 as well as cities and towns set forth under A.R.S. § 38-431.02(A)(3)(c) and -431(A)(4)(b). The public body must also provide additional notice as is reasonable and practicable. The posting locations should be where the public has reasonable access: should not be geographically isolated, should not have limited access, and should not be too difficult to find.

Do members of the public have to sign an attendance sheet before attending a public meeting?

No.  Open meeting law does not grant public bodies authority to require that members of the public sign an attendance sheet in order to attend an open meeting.  Persons that wish to address the public body are required to provide a name for the minutes.

May the public body prevent members of the public from speaking at a public meeting?

Yes. The open meeting law does not require that a public body offer a call to the public. The public has a right to attend meetings, not participate in meetings. Ariz. Att’y Gen. Op. 78-1. If the public body allows a call to the public, the public body determines when attendees may address the public body and may place time restrictions.

In addition, the public body may not discuss or take action on matters raised during the call to the public that are not specifically identified on the agenda, but may respond to criticism, ask staff to review a matter, or ask that a matter be placed on a future agenda.

May a board member ask the staff to review a matter raised by a member of the public during the call to the public even if it was not an agenda item?

Yes. At the end of the call to the public, public officials may ask staff to review a matter, or ask that a matter raised by a member of the public be put on a future agenda.

May attendees videotape a public meeting?

Yes, so long as it does not actively interfere with the conduct of the meeting. A.R.S. § 38-431.01(F).

What happens if a room is too small to accommodate the number of people that want to attend a public meeting?

It depends. The public body must provide the public with access to all public meetings. The requirement is not met if the meeting is held in a room too small to accommodate the reasonably anticipated number of observers. If the room is too small, the public body should recess and resume the meeting in a larger location. Of course, in doing so, it must notice the time and place of resumption. This action does not require 24 hour notice. An agency may also provide overflow rooms, provided there is a live audio feed of the meeting and the people in the overflow rooms are offered the same opportunities to participate in the meeting as the people in the meeting room.

May a public body withhold meeting minutes until they are approved?

No.  A public body must make statutorily compliant minutes or a recording available for inspection within three working days after the meeting. A.R.S. § 38-431.01(D). An agency can not withhold a draft of the minutes if requested.

In 2006, the Legislature imposed additional posting requirements upon cities and towns with populations of more than 2,500 persons. They must post a statement showing legal actions taken during the meetings or any recording of the meeting on their website within three working days after the meeting. City and town councils must also post any approved minutes on their site within two working days after the approval of the minutes. A.R.S. § 38-431.01(D).

In 2007, the Legislature decided that advisory committees and subcommittees must also take minutes or record all of their meetings, including executive session. A.R.S. §§ 38-431(6) and -431.01(B). Advisory committees and subcommittees established by public bodies of cities and towns with populations greater than 2,500, must post a statement describing legal action or any recording of a meeting on its website within ten working days of the meeting. A.R.S. § 38-431.01(E)(3).

When can a public body meet in executive session?

A public body may meet in executive session for one of seven reasons: 1) personnel discussions, 2) confidential records, 3) legal advice, 4) litigation, contract negotiations, and settlement discussions, 5) employee salary discussions, 6) discussion regarding international, interstate, and tribal negotiations, and 7) discussion regarding the purchase, sale, or lease of real property. A.R.S. § 38-431.03.

Are communications between the public body and its attorney during executive session subject to the attorney-client privilege?

Communications that occur with governmental bodies in executive session can be subject to the attorney-client privilege. Regardless, statements made in executive session are confidential whether or not they are otherwise privileged. The Arizona Court of Appeals held that an attorney cannot testify about communications made during executive session even pursuant to a grand jury subpoena. State ex. rel. Thomas v. Schneider, 212 Ariz. 292, 130 P.3d 991 (App. Div. 1, 2006)(review denied September 26, 2006).

May board members communicate via e-mail?

It depends. E-mail communications are treated the same as any other form of communication between board members. For information and hypotheticals illustrating the use of e-mail, please review Attorney General Opinion I05-004.

What committees are subject to Arizona’s Open Meeting Law?

Any entity, however designated, that is officially established on motion or order of a public body or presiding officer of the public body, and whose members have been appointed for the specific purpose of making a recommendation concerning a decision to be made or considered or a course of conduct to be taken or considered by the public body is subject to all of the open meeting law requirements.

A.R.S. § 38-431.01 was amended and requires subcommittees and advisory committees to take meeting minutes or record all of their meetings, including executive sessions.

A.R.S. § 38-431(E)(3) also requires subcommittees and advisory committees established by public bodies of cities or towns with a population of more than 2,500 persons to post a statement describing legal action or any recording of a meeting on its internet website within ten working days of the meeting.

May board members discuss issues or express opinions to the public outside a properly noticed meeting?

Yes. A.R.S. § 38-431.09 clarifies that if a member of a public body individually expresses an opinion or discusses an issue with the public, through public broadcast or at a venue other than a public meeting, the member is not in violation of the open meeting law, if the opinion is not directed at another public official and there is no concerted plan to engage in collective deliberation to take legal action.

How long must internet postings required under A.R.S. § 38-431.01(E) remain on the website?

One year from the date of posting. A.R.S. § 38-431.01(J). This requirement only applies to cities and towns with a population of over 2,500 persons and their subcommittees.