from the Superior Court in Maricopa County No. CV2014-009496
The Honorable James T. Blomo, Judge
Cheifetz Iannitelli Marcolini PC, Phoenix By Steven W.
Cheifetz and Jacob A. Kubert Counsel for Plaintiff/Appellant
Law Firm PC, Chandler By Robert Grasso, Jr. and Stephanie L.
Samuelson Counsel for Defendant/Appellee
Presiding Judge Andrew W. Gould delivered the opinion of the
Court, in which Judge Peter B. Swann and Judge Patricia A.
In September 2013, the Board of Directors of Sun Lakes
Homeowners Association #1 (the "Association")
passed a motion excluding Colette McNally, a duly-elected
member of the Board, from attending the Board's executive
sessions. McNally filed an application for a preliminary
injunction seeking to compel the Board to allow her to attend
its executive sessions. The superior court denied
McNally's application. We conclude the Board lacked
authority to exclude McNally from its executive sessions, and
AND PROCEDURAL HISTORY
The Association is a non-profit corporation that maintains
and operates a community restaurant, golf course, and other
facilities for the residents of Sun Lakes. The Association is
managed by a seven-member Board. Members of the Board are
elected by Association homeowners for three-year terms. The
Board's meetings are open to residents, with the
exception of its executive sessions, which are closed to
In 2011, McNally was elected to a three-year term on the
Board. In August 2013, Jeannie Martens, a former Association
employee, sent McNally and three non-Board members an e-mail.
In her e-mail, Martens accused Association General Manager
Clint Warrell and Human Resources Manager Roberta Laird of
misconduct. The next day, McNally forwarded Martens'
e-mail to Rick Schwartz, Board President. McNally also sent
an e-mail to Schwartz alleging additional misconduct by
Warrell and Laird; she demanded they resign or be dismissed.
The Board met in two special executive sessions to discuss
Martens' email and McNally's allegations. At both
sessions, Schwartz advised the Board that he had discussed
Martens' e-mail with Charles Maxwell, the
Association's attorney. According to Schwartz, Maxwell
recommended the Board (1) take no action on Martens'
e-mail, and (2) avoid any further publication of the e-mail.
As a result, during the September 4, 2013, executive session,
the Board adopted a resolution disavowing "any approval
of or responsibility for any of  McNally's emails
maligning Clint Warrell, " and stating that if Warrell
sued the Board or the Association, "the [Association
will make the resolution available to the judicial system to
reduce or eliminate liability and place it upon the
Following the September 4 executive session, the Board
reconvened in open session. During the open session, McNally
began reading Martens' e-mail to the Association members
in attendance. Schwartz asked McNally to stop reading the
e-mail, but when she refused, he abruptly adjourned the
A week later, the Association's attorney sent McNally a
letter stating that her conduct during the September 4 open
session violated her duties of confidentiality and loyalty to
the Association. The attorney also stated he was recommending
the Association exclude McNally from participating in future
On September 20, 2013, the Board approved a motion banning
McNally from all executive sessions for the balance of her
term. McNally's term ended in February 2014, but she was
re-elected to a second term expiring in February 2017. After
McNally's re-election, the Board offered to allow McNally
to participate in executive sessions if she agreed to keep
matters discussed in executive sessions confidential; she
Following her re-election, McNally filed a lawsuit against
the Association, asserting claims for declaratory/injunctive
relief, breach of contract, defamation, false light, and
punitive damages. In her prayer for injunctive relief,
McNally sought an order compelling the Association to comply
with applicable open meeting laws and allow her to
participate in executive sessions. See Ariz. Rev.
Stat. ("A.R.S.") section ...