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Tampering with HOA Proxy Votes Alleged

By Edythe Jensen

Dec. 2, 2004  

Allegations of voting irregularities and proxy tampering have some residents in Chandler's Carino Estates subdivision calling for an outside investigation of a recent homeowners association election. 

But it's unclear who or what oversees such elections in the state's thousands of homeowners associations, even though their elected boards set fees, levy fines and enforce neighborhood rules. 

Jan Fiakas, 53, a Carino Estates resident who lost his bid for re-election to the board last month, said he took evidence of more than 40 altered proxies to the Arizona Attorney General's Office this week. State law, however, doesn't give the office jurisdiction over homeowners association elections, agency spokeswoman Andrea Esquer said.

"The remedy is in civil court," she said. 

Carino Estates is a 721-home subdivision north of Queen Creek Road, between Alma School Road and Arizona Avenue. 

"I feel like my vote was stolen," said resident Bob Johnson, 76. Election winner Steve Heiser's name was written on a proxy signed by Johnson's wife, but Johnson said the couple didn't write it there and a line on their proxy stated it would be used "for quorum purposes only," and not to elect board members. 

Homeowners associations use proxies to allow members to vote without being present at a meeting. However, the Carino Estates proxies were worded to allow signers to submit them "for quorum purposes only" to legitimize the board election, without giving proxy holders the right to vote for candidates. 

After viewing a copy of the "quorum purposes only" proxy she signed, resident Barbara Anson, 65, said the paper had been altered to appoint election winner Joe Skurtovich. 

"It's annoying to me that someone living in my neighborhood would stab me in the back by taking my vote," she said. "It's an indication of more underhanded things, and I'm not liking this at all." 

Skurtovich's name also appeared on Nick Phillips' proxy, and he said he didn't write it there. 

"We need to have a revote," said Phillips, 50. Anson, Johnson and Phillips said they were asked to sign proxies by people going door to door and were assured they wouldn't be used to elect board candidates. 

Board members declined to respond as individuals but provided a written statement to The Arizona Republic that said, in part, "In collecting these proxies we did not deceive any resident, force any resident to assign their proxy to any homeowner, or forge any homeowner signatures." 

Election results provided by the board show all seven winners had 175 proxy votes. The lowest vote total required to win was 193; Fiakas got 39 votes, including 11 proxies. 

The statement also said that the association's attorney advised the winners that there are no provisions in the association's governing documents or state law for the aggrieved candidates to stop them from taking office. 

That legal opinion, obtained by Fiakas, also said, "It is also my advice that any candidate who believes that he or she lost the recent election based on fraud or other irregularity retain an attorney immediately and, if that attorney recommends it, file a lawsuit to have this matter determined by a judge." 

Carino Estates, like most other homeowners associations, is incorporated. But Arizona Corporation Commission spokeswoman Heather Murphy said her agency has no regulatory authority over their elections and said residents must turn to civil court. 

Crystal Prentice, Chandler Neighborhood Programs Administrator, said the city can't step into HOA elections and often refers association disputes to "Solve It!" a mediation service based at Chandler-Gilbert Community College. Ive heard horror stories but never known one to happen in our city," she said. Mesa attorney Charles Maxwell, who represents more than 400 homeowners associations in Arizona, said allegations like this are rare. He also said wording in proxies may be confusing, and the easiest remedy to a vote dispute is to hold a new election. Suing is another option, he said. 

Last year, state lawmakers passed several bills aimed at regulating homeowners associations' powers, but Maxwell said he wouldn't recommend that the state step into HOA elections. 

Fiakas wants a new election and is pursuing an alternative if the attorney general doesn't take the case. Under the association's rules, 25 percent of the homeowners can request a special meeting, and he's already gathering signatures. But he's angry that state laws don't afford associations more protection. 

"Why do we need to hire an attorney to protect our rights?" he said.

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