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IS THIS LEGAL?
 QUESTION:
Two of our board members resigned. The president advertised the
openings and held an executive meeting to interview applicants. Is this
on any level legal?
ANSWER: It is probably legal. Interviewing board candidates may not exactly fall into one of the five categories of executive session topics but it most closely fits the "personnel" exception.
Appointments.
Appointments and elections are similar. In elections the membership
selects directors they believe will best represent their interests.
During the election process candidates can meet individually and
privately with members or they can meet in group settings that may be
open or closed. When it comes to board appointments, directors have the
right to interview and select someone they believe will be compatible
with fellow directors and best represent the interests of the
association. I believe the interviews can either be open or closed at
the board's discretion.
Voting. Even though the interviews
may be done in executive session, the vote to fill the empty seat
should be done in open session. A good argument can be made that that
voting for the candidate in executive session is part of the "hiring"
process but I'm not convinced. Other than a dissenting director wanting
to grandstand for an audience, there is no compelling reason to take the
vote in executive session.
RECOMMENDATION: Because this is an unsettled area of the law, boards should run it by legal counsel and follow their attorney's advice.
VIRTUAL MEETINGS
 QUESTION: I
understand from your website and the Corporations Code that boards can
arrange a virtual meeting. Suppose owners who wish to participate must
call into the meeting and the phone number is not toll free. Is that
okay? Or do you think it must be a toll free number?
ANSWER: It depends.
Web Conferencing. Increasingly
associations are exploring the option of broadcasting their meetings
over the internet so members can observe the meeting and participate in
the Open Forum via their computers. Some of the more common web
conferencing services include Webex, GoToMeeting.com, Adobe Connect,
GoMeetNow.com and Microsoft Live Meeting. For improved sound quality,
the audio portion of the meeting can be done by telephone instead of the
internet. Typically, there is an additional cost associated with this
feature.
Who Pays? If the meeting is both live and
virtual, i.e., members can attend in person or call in, the association
can shift the call-in cost to participants since virtual attendance is
optional. If, however, the meeting is entirely virtual and members
cannot attend in person, then I don't see how the association could
charge participants for attending.
RECOMMENDATION:
For associations where most members live onsite, virtual meetings are
an interesting novelty. For HOAs where a large percentage of owners live
offsite, web conferencing is more of a necessity. So as to encourage
openness and member participation, boards should include the cost of web
conferencing in the association's budget and make attendance free to
all participants.
HANDICAP POOL CHAIR
 QUESTION:
One of our board members wants to install a pool chair for the
handicapped. By installing it, are we opening ourselves to potential
liability?
ANSWER:
Of course. As with any amenity, there is always potential
liability--people can twist ankles on tennis courts, be thrown from
horses on HOA trails, drown in association pools, trip over clubhouse
furniture, etc. It is impossible to operate anything without potential risk, especially an association. At best, risks can be minimized by proper maintenance and good rules enforcement.
New Amenities.
When it comes to adding a new amenity to the common areas, such as a
hot tub, playground equipment, billiard tables, or handicap pool lifts,
the trick is weighing the benefits of the new amenity against the risks.
If the benefits outweigh the risks, add the amenity. If the risks are
too great (bungee jumping for toddlers), don't. If a new amenity is
installed, it must be properly maintained and appropriate rules adopted
and enforced.
Reasonable Accommodation. When making a
decision about a handicap chair lift, boards should take into account
laws that encourage accommodation of the handicapped. Following are some
of those laws:
1. Americans With Disabilities Act. In
2010 ADA Standards were changed to require all commercial facilities,
such as hotels, motels and health clubs, to provide accommodations for
disabled pool patrons. HOA pools are not affected unless they are open
to the public. Allowing the public to use the pool (usually for a fee)
or allowing swim competitions with outside groups are examples that
would subject an HOA pool to ADA regulations. Carolyn v. Orange Park.
2. Federal Fair Housing Act.
HOAs cannot prevent residents from using their own pool lifts to get
into and out of the association's pool. HOAs can require owners to store
their equipment when it's not in use.
3. Fair Employment and Housing Act (Calif. Gov. Code
§§12900-12996) requires
reasonable modification of an association's rules and policies to allow a
disabled person equal opportunity to use and enjoy the premises.
4. Davis-Stirling Act (Civil Code §1360) allows owners to make alterations to the common areas at their own expense to accommodate their disabilities.
RECOMMENDATION: If
a handicap issue is raised by a resident, boards should seek legal
counsel and consider ways to reasonably accommodate the request. Even if
handicap issues have not yet been raised, board should
budget for and make facilities ADA compliant whenever possible.
Handicap advocates and their lawyers tend to be aggressive and fighting
over such issues can be expensive. It may be less expensive to make
amenities handicap accessible than to spend money on lawyers.
FEEDBACK
Protecting Signatures.
Another alternative [to protecting owner signatures from identity theft
during elections] is placing their signed #2 Envelope containing the
ballot and #1 envelope in another, usually #10 envelope, addressed to
the Inspector and mailing their ballot that way. -Marc Poland, The Inspectors of Election
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Newsletters are for advertising & general information by
Adams Kessler PLC. Readers should not act on issues raised in our newsletters or website without consulting legal counsel.
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