ALJDEC decisions subject to certification as final

12F-H1212014-BFS · Department of Fire Building and Life Safety - H/C · 2012-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William M. Brown (“Petitioner”) filed a Petition with the Arizona Department of Fire, Building and Life Safety (“Department”) alleging that the Terravita Community Association, Inc. (“Respondent”) committed the following violation:

Alleged Violation Description

Following a May 25, 2012 records request pursuant to A.R.S. § 33- 1805(A), the association failed to provide the requested records (hard copy or electronic mail) and failed to provide the requested records for examination.

“By return electronic mail, please provide the following association records:

1) Engagement letter and/or retainer agreement, legal services agreement, professional services contract with current fee schedule (programs/services) by and between Terravita Community Association, Inc. and Ekmark & Ekmark, L.L.C.

2) Minutes of the March 27, 2012 and April 24, 2012 executive session meetings of the board of directors.[″]

The Department forwarded Petitioner’s Petition to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing scheduled to convene on October 9, 2012, at 8:00 a.m. On September 21, 2012, Respondent filed Respondent’s Motion for Summary Judgment for Mootness (“Motion”) claiming that two of the requested documents do not exist and a third, the minutes of the Board’s Executive Session on March 27, 2012 meeting, are not public documents “wholly protected from disclosure under the plain language of A.R.S. § 33- 1805(B)(3).” On October 2, 2012, Petitioner filed a written response in opposition to Respondent’s Motion. On October 3, 2012, at 9:19 p.m., Petitioner electronically filed a supplement to his written response. Petitioner contends that “Respondent’s understanding [of] the ‘plain language’ of A.R.S. § 33-1805(B)(3) is as mistaken as Respondent’s affirmation” that Respondent has fully complied with Petitioner’s request. However, Petitioner’s response did not provide any legal authority for his position. Upon review and consideration of Respondent’s Motion and Petitioner’s response in opposition to it, the Administrative Law Judge concludes that the Motion should be granted for the following reasons: Alleged Violation Description 1) In response to Petitioner’s request to examine an engagement letter between Respondent and its counsel, Ekmark & Ekmark, L.L.C., Respondent stated that there is no such engagement letter in existence. Even if an engagement letter did exist, the engagement letter would be protected by attorney/client privilege that could not be disclosed to any third party, unless Respondent waived that privilege, pursuant to A.R.S. § 33-1805(B). Petitioner would not be entitled to view or possess any such engagement letter. Alleged Violation Description 2) A.R.S. § 33-1804(A) provides that a Board’s executive session meetings are not open to the public or non-Board members. Petitioner’s response failed to state any legal authority to support his contention that he has a right to minutes from Respondent’s executive session meetings. If Petitioner had been present when Respondent’s Board went into executive session, he, along with any non-Board members present, would have been excluded from the meeting. The minutes of Respondent’s Board’s executive session meeting on March 27, 2012, are not public minutes available to Petitioner or any other non-Board member, pursuant to A.R.S. § 33-1805(B)(3). Petitioner requested the minutes of a purported executive session meeting on April 24, 2012. Respondent contends that there was no executive session meeting on that date. Even if there were minutes of an executive session meeting by Respondent’s Board on April 24, 2012, Respondent would not be required to produce those minutes to Petitioner, pursuant to A.R.S. § 33-1805(B)(3). Conclusion Petitioner is not entitled to receive or view the requested records, whether they exist or not. The Administrative Law Judge concludes that, based on the above, there are no issues contained in the Petition that require an evidentiary hearing. THEREFORE, IT IS ORDERED granting Respondent Motion for Summary Judgment for Mootness and vacating this matter from the calendar of the Office of Administrative Hearings.[1]

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification.

Done this day, October 4, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Copy mailed/e-mailed October 4, 2012, to:

Gene Palma, Director Department of Fire Building and Life Safety

William M. Brown 6751 E. Amber Sun Drive Scottsdale, AZ 85266 Email: [email redacted]

Curtis S. Ekmark, Esq. Jason F. Wood, Esq. Ekmark & Ekmark L.L.C. 6720 N. Scottsdale Rd., Suite 261 Scottsdale, AZ 85253 Email: [email redacted]

----------------------- [1] Therefore, Respondent’s Motion to Continue Hearing and Compel Discovery filed on September 24, 2012, is moot.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826