OPEN HOA BOARD MEETINGS

Kinds of Board Meetings
 

• Regular Open Meetings. These are usually scheduled for the same day each month. Members can attend to observe the board as it conducts business.  
   
• Special Open Meetings. These are scheduled as needed for matters that cannot wait for a regularly scheduled meeting. Unless otherwise provided in the bylaws, board meetings may be called by the president or any vice president, the secretary, or any two directors (Corp. Code § 7211(a)(1)) with four days' notice to the membership. (Civ. Code § 4920(a))
   
• Executive Session Meetings. Executive session meetings are closed to members due to the confidential nature of the topics discussed. Two days' notice must be given to the membership. (Civ. Code § 4920(b)(2)) 
   
• Emergency Meetings. Emergency board meetings can be called to address an immediate issue and may be open or held in executive session. 

Open Meeting Act

The legislature patterned the Open Meeting Act (Civ. Code § 4900) on the open meeting provisions of the Brown Act. The Brown Act is a series of statutes in Government Code §§ 54950-54962 that regulate the meetings of public legislative bodies at the local government level.

Because of a homeowners' association board's broad powers and the number of individuals potentially affected by a board's actions, the Legislature has mandated that boards hold open meetings and allow the members to speak publicly at the meetings. (Civ. Code, §§ 1363.05, 1363; 1350-1376) These provisions parallel California's open meeting laws regulating government officials, agencies, and boards. (Ralph M. Brown Act, Gov. Code, § 54950 et seq.) Both statutory schemes mandate open governance meetings, with notice, agenda, and minutes requirements, and strictly limit closed executive sessions. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468, 475)

Who Can Attend? See Who Can Attend Board Meetings?

Board Meeting Defined

The Davis-Stirling Act defines board meetings as a gathering of a quorum of directors at the same time and place to "hear, discuss, or deliberate upon any item of business that is within the authority of the board." (Civ. Code § 4090.)  The definition of “board meeting” under Civil Code § 4090(a) does not include email correspondence between directors, even if they discuss association business. 

In sum, we conclude "board meeting," as defined by section 4090, subdivision (a), is an in-person gathering of a quorum of the directors of a homeowners association at the same time and in the same physical location for the purpose of talking about and taking action on items of association business. E-mail exchanges among directors on those items that occur before a board meeting and in which no action is taken on the items, such as those at issue in this case, do not constitute board meetings within the meaning of that provision. (LNSU #1 v. Alta Del Mar Coastal Collection Cmty. Ass'n)

The court rejected the argument that relied on the language of Civil Code § 4910(b) (prohibiting a board meeting via email except in an emergency) to indicate that a board meeting could be held by email. 

We therefore read section 4910, subdivision (b) as specifying a third method, in addition to and different from those defined by section 4090, by which the board may conduct a meeting and take action on a matter of homeowners association business, and which may be used only in an emergency as defined by section 4923. It is not a subset of the type of board meeting defined by section 4090, subdivision (a), by which the board may take action on association business matters in nonemergency situations. (LNSU #1 v. Alta Del Mar Coastal Collection Cmty. Ass'n)

Email Between Directors. For more information, see "Email Between Directors."

Disallowed Board Meetings

Boards cannot act on any business item outside of a board meeting. (Civ. Code § 4910(a)) "Item of business" means any action within the board's authority, except those actions the board has validly delegated to any other person or persons, managing agent, officer of the association, or committee of the board comprising less than a majority of the directors. (Civ. Code § 4155) Except for emergencies, boards cannot conduct business by email (see Unanimous Written Consent below). Nor can Boards hold "Serial meetings" to evade the Open Meeting Act. Serial meetings come in two forms:

1. Chain Meetings (or daisy-chain meetings) occur when director "A" talks to director "B," who talks to "C," who, in turn, talks to "D" to get a decision on a piece of business. A variation is where A and B talk, then A talks to C and B talks to D, etc. No more than two are ever in the conversation, so a quorum is never involved, but decisions are being made and action taken on business outside of an open meeting and without minutes
    
2. Hub-Spoke Meetings (also called wheel-hub meetings) occur when directors serve as spokes, with one person at the center (the hub). Directors never talk to each other; each speaks separately to a director (or manager) who coordinates and relays messages to make a decision and take action outside a meeting, without minutes. 

The Davis-Stirling Act does not address these kinds of meetings. Whenever in doubt about open meeting compliance, the Brown Act and the Bagley-Keene Act can provide guidance. The Brown Act prohibits such communications, whether direct, by intermediaries, or electronically. (Gov. Code § 54952.2; 63 Opps.Atty.Gen. 820 (1980); Stockton Newspapers v. Redevelopment Agency (1985) 171 Cal.App.3d 95)

Exceptions to the Open Meeting Act

Not all gatherings of directors in one place are considered "board meetings." In addition to executive session matters, a majority of directors can attend committee meetings, seminars, or social events without violating the Davis-Stirling Open Meeting Act. Although not specifically covered in the Davis-Stirling Open Meeting Act, these issues have already been addressed for public agencies in the Bagley-Keene Act and the Brown Act. They provide good guidelines on what homeowner association boards may do.

Bagley-Keene Act. The Bagley-Keene Open Meeting Act governs meetings of local governments and closely parallels the Brown Act. Bagley-Keene states that boards have three duties: (i) give adequate notice of their meetings, (ii) provide an opportunity for public comment, and (iii) conduct their meetings in open session, except where a closed session is expressly authorized. All three principles were incorporated into the Davis-Stirling Open Meeting Act. As provided for in Bagley-Keene, not all board gatherings violate the Act. A majority of directors can gather for the following purposes, provided they do not discuss board business among themselves:

• A conference or similar gathering open to the public. (Gov. Code § 11122.5(c)(2))
• An open and publicized meeting organized to address a topic of state concern. (§ 11122.5(c)(3))
• A purely social or ceremonial occasion. (§ 11122.5(c)(5))
• An open and noticed committee meeting, provided board members who are not members of the committee attend only as observers. (§ 11122.5(c)(6); see Guide To Bagley-Keene Open Meeting Act)
• A closed executive committee meeting composed of fewer than a quorum of directors. (Note: This would not be true for a 3-member board since executive committees require at least two members.)

Brown Act. Similarly, under the Brown Act (Gov. Code § 54952.2(c)), the following actions would not be considered a violation:

• Individual contacts or conversations between a member of a legislative body and any other person.
   
• The attendance of a majority of the members of a legislative body at a conference or similar gathering open to the public that involves a discussion of issues of general interest to the public or to public agencies of the type represented by the legislative body, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specified nature that is within the subject matter jurisdiction of the local agency. Nothing in this paragraph is intended to allow members of the public free admission to a conference or similar gathering at which the organizers have required other participants or registrants to pay fees or charges as a condition of attendance.
   
• The attendance of a majority of the members of a legislative body at an open and publicized meeting organized to address a topic of local community concern by a person or organization other than the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled program, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.
   
• The attendance of a majority of the members of a legislative body at an open and noticed meeting of another body of the local agency, provided that a majority of the members do not discuss among themselves, other than as part of the scheduled meeting, business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.
   
• The attendance of a majority of the members of a legislative body at a purely social or ceremonial occasion, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency.

Board Orientation/Training. A board orientation or training session is an informational meeting for new boards where directors meet with the association's management and/or legal counsel to (i) learn about the board's duties, (ii) receive an update on legal issues, and (iii) receive historical background information. As such, a board orientation does not require notice to the membership and may be held in closed session. If, however, there is an expectation that pending legal matters will also be discussed with the association's attorney, a two-day notice of an executive session must be posted.

Allowable Meeting Formats
 

• In Person. Directors can meet in person at a physical location.
   
• Virtual (Zoom) Meetings. Directors can meet by telephone or video conference. (Civ. Code § 4090(b); see Zoom Meetings)
   
• Unanimous Written Consents. Before the Legislature's 2012 amendment to the Open Meeting Act, boards could take actions with unanimous written consent without a meeting. Such actions are now disallowed except for emergencies. (Civ. Code § 4910(a); see Emergency Meetings) In associations that are not common interest developments, boards can continue to act by unanimous written consent. (Corp. Code § 7516; Corp. Code § 7211(b))

Pledge of Allegiance & Prayer
 

Pledge of Allegiance. Many organizations recite the Pledge of Allegiance at the start of their meetings. It is fairly routine and noncontroversial:

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

Directors and owners have the right to make political statements by refusing to recite the pledge. 

Civic Prayer. Civic prayer has been a tradition in our Country since the Pilgrims landed on Plymouth Rock in 1620. The Pledge of Allegiance was added to civic functions in the late 1800s. Both remained noncontroversial until the 1960s, when significant change roiled through the nation, challenging institutional traditions at all levels. The courts became a battleground for church/state issues.

Court Review. In the 1983 case Marsh v. Chambers, the U.S. Supreme Court ruled that prayer at public meetings was constitutional and part of a long, historic tradition. Citing public prayers from George Washington's inaugural address to George Bush's cabinet meetings, the 7th U.S. Circuit Court of Appeals held that "prayers and the invocation of divine guidance have been accepted as part of American political discourse throughout the history of this Republic." (DeBoer v. Village of Oak Park, Ill)

Homeowner Associations. Thus far, the church/state battle has not affected homeowner associations because HOAs are private organizations, not governmental entities. As a result, the "wall of separation" argument does not apply to board meetings. Even so, many are uncomfortable with public prayer, and each board must decide for itself whether to use it. It should be noted that a policy adopted by one board does not bind subsequent boards.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.