Action Property Management Recommendation
Open Board Meetings: COVID-19 Options
The following is provided by the law firm of Whitney Petchul:
Option #1 – Postpone any non-essential Board meetings, and reschedule at a later date.
Option #2 – Hold Executive Session Meetings only, as necessary, via teleconference, with Board members and management only; postpone any non-essential hearings with owners.
Option #3 – Continue with Open Board Meetings, at which Board members (and possibly members) participate via teleconference, via one of the following Options:
Pursuant to Civil Code Section 4925, the Association is required to allow members to attend and to speak at any Board meeting (subject to reasonable time limits). As such, the Telephonic meeting-related options are as follows:
Option 1 – In person attendance by Members; fully compliant with open meeting legal requirements.
- Provide a notice of the Board meeting that identifies a physical location where members may attend to hear and be heard on the teleconference.
- Designate a Board member or other person to be present at the location identified for the members.
IMPORTANT, the attendee at the physical location for members IS NOT required to be the community manager and is not required to be a member of the association. However, the designated person should a) be capable of operating the speaker phone (or other device utilized for the transmission of the Teleconference), to assure that any member that attends at that location is able to hear all parties to the Telephonic meeting and b) should be familiar with how the meeting will be conducted and the specific rights of members to speak (and the limitations to that right). Members can be encouraged not to attend. However, the only means for those members to participate in the meeting or to hear the meeting would be for them to appear at the designated location in person.
This option is fully compliant with the legal requirements of the Davis Stirling Act. However, it will, effectively, encourage members of the association to congregate, and mandate that one other person attend in a manner that is not recommended at this stage of our worldwide pandemic.
Option 2 – Members may attend in person or join the Teleconference; fully compliant with open meeting legal requirements.
- Provide notice of the Board meeting that identifies a physical location were members can attend to hear and be heard on the teleconference.
- Arrange for a designated person to attend that location, but encourage members not to physically attend.
- Provide members, in the same notice, a call-in number and code to participate in the meeting via teleconference (rather than in person).
This option is fully compliant with the legal requirements of the Davis Stirling Act inasmuch as the physical location is being provided as required by Civil Code 4090. However, by providing the call-in number and code, the probability of attendance at the designated location is significantly reduced. That said, there is still the potential that it will provide some encouragement to members of the association to congregate, and mandate that one other person to attend in a manner that is not recommended at this stage of our worldwide pandemic.
An added challenge created by this option is that providing a call-in number and code to members drastically increases the probability of inappropriate disruption by attending members (in a situation where it might be difficult or impossible to know which member is doing so). That said, certain economical teleconference services offer host controls that allow selective muting of attending members (such that, after membership commentary, the lines of all attendees other than the board members can be muted). One such service is FreeConferenceCall.com.
Other challenges that arise with this option are, A) it may be difficult or impossible to verify that any given attendee is a member of the association and/or B) it will be impossible to avoid unauthorized recording of the meeting. As such, if this option is utilized, it may warrant an introductory statement/warning crafted to mitigate those risks.
Option 3. Teleconference only; NOT fully compliant with open meeting laws but legal risk viewed as low in light of COVID-19 pandemic.
- Provide notice of the Board meeting that does not provide a physical location and only provides teleconference meeting number and code.
This option IS NOT fully compliant with the law inasmuch as a physical location is not provided as referenced in Civil Code Section 4090. However, in light of our worldwide pandemic and the actions that have been taken by world organizations and our federal, state and local governments (including the March 13, 2020 declaration of a National Emergency), it is generally viewed as unlikely that any court would take any action against an association for this strategy, particularly if members can hear and appropriately participate on the Teleconference.
An added challenge created by this option is that providing a call-in number and code to members drastically increases the probability of inappropriate disruption by attending members (in a situation where it might be difficult or impossible to know which member is doing so). That said, certain economical teleconference services offer host controls that allow selective muting of attending members (such that, after membership commentary, the lines of all attendees other than the board members can be muted). One such service is FreeConferenceCall.com.
If this option is utilized, boards should consider, to the extent feasible, delaying larger or more controversial board decisions, projects or changes until they can be addressed at a meeting that is fully compliant with the express requirements for open meetings, or it is established that the exigency of the particular action or project cannot be reasonably delayed any further. Boards should also consider ratifying all actions taken at these meetings at the next meeting the associations conducts that fully complies with the open meeting act (traditional in-person meetings, or meetings conducted pursuant to options 1 or 2, above).
An added challenge with this option is that providing a call-in number and code to members drastically increases the probabilities of inappropriate disruption by attending members (in a situation where it might be difficult or impossible to know which member is doing so). That said, certain economical teleconference services offer host controls that allow selective muting of attending members (such that, after membership commentary, the lines of all attendees other than the board members can be muted). One such service is FreeConferenceCall.com.
Other challenges with this option are a) it may be difficult or impossible to verify that any given attendee is a member of the association and/or b) it will be impossible to avoid unauthorized recording of the meeting. As such, if this option is utilized, it may warrant an introductory statement/warning crafted to mitigate those risks.