Can Members Record Board Meetings?
Private Membership Meetings. Boards can record and post their meetings if they wish. However, neither individual board members nor attendees have the right to record board meetings. Association meetings are not public gatherings in the sense that the general public can attend the meetings. They are deemed "public meetings" for the association's members. Under the Open Meeting Act, association members (not the general public) can attend board meetings and address the board. (Civ. Code § 4925) Because they are "board meetings," boards can set meeting procedures and govern the community’s business and affairs. (SB Liberty v. Isla Verde Ass'n (2013) 217 Cal.App.4th 272, 284) It means that boards of directors can adopt rules restricting recordings.
Brown Act Does Not Apply. The Davis-Stirling Open Meeting Act governs board meetings and is separate from the Brown Act. No statute or case converts a board meeting of a common interest development into a public gathering and permits the unauthorized recording of those meetings. Civil Code § 4925 allows only two things: (i) a member's right to attend an open meeting and (ii) their right to speak during an open meeting. There is nothing in the statute that allows members to record HOA meetings. The Brown Act expressly permits the recording of open meetings subject to the Act. (Govt. Code § 54953.5(a)) There is no such right in the Davis-Stirling Act. While parts of the Davis-Stirling Act are similar to the Brown Act, the fact that the legislature deleted that point from the Davis-Stirling Act makes it clear they were dealing with private, not public, meetings.
Negative Aspects of Owner Recordings
Meeting attendees who bring audio or video recorders to board meetings often do so because they are threatening litigation or wish to intimidate others into silence. Members may be reluctant to speak for fear of being dragged into litigation or appearing on internet websites. As a result, the person doing the recording suppresses members' free speech rights. Moreover, even though owners attending a meeting may not have an expectation of privacy within the community, they have a reasonable expectation that their conversations and likeness will not be posted on YouTube or other websites open to the general public outside their community. For these reasons, many boards prohibit private recordings, whether audio or video.
Recording Confidential Conversations
The Penal Code makes it a crime to record confidential conversations without the other person's consent. However, the prohibition does not apply to open board meetings or membership meetings. Private membership meetings are deemed public forums for the limited purpose of free speech by the membership. (Damon v. Ocean Hills) As a result, recording a board or membership meeting does not necessarily violate Penal Code § 632.
Executive Session and IDR. It should be noted that executive session meetings and internal dispute resolution (IDR) meetings have different expectations. Those who attend such meetings expect their conversations to be confidential. Accordingly, any surreptitious recording of such meetings would likely violate the Penal Code.
Rules & Penalties
Recordings that are not subject to criminal penalties under the State's Penal Code can still be subject to fines under an association's rules and regulations, i.e., what is permissible by the state can still be restricted by an association. For example, a city might allow three dogs per household, but an association can, under its own authority, restrict households to one dog. The same applies to recording meetings; boards can adopt rules restricting recordings and penalizing violators.
Accordingly, boards and committees have the authority to create reasonable rules of conduct for their meetings, such as restrictions on recording and prohibiting foul language. The authority to adopt rules is typically found in the CC&Rs and, oftentimes, in the articles of incorporation and bylaws. The power to adopt rules has been upheld by the courts (Rancho Santa Fe Assn. v. Dolan-King). If boards and committees adopt rules of conduct for their meetings, the rules should be printed on their meeting agendas.
Membership Notice. Although meeting rules and penalties are not listed in Civil Code § 4340(a) as an operating rule requiring notice to the membership before their adoption, boards should submit them to the membership for review and comment. Doing so fosters transparency and tends to moderate rules and fines.
Preparing Minutes. Boards can record their proceedings to prepare meeting minutes, but prohibit third parties from doing so (as judges do in their courtrooms). Associations can also broadcast their open meetings if they wish.
Recording Unruly Attendees
Boards might choose to record specific meetings to help control unruly attendees.
SUMMARY: Because board meetings are the board's meetings, boards can establish rules for the conduct of their meetings. That means they can disallow members from recording their meetings. In the alternative, boards can choose to record and/or broadcast their meetings. Because board meetings are considered public forums within the association, the board does not need the permission of attendees to record/broadcast meetings. The reverse is not true. Attendees cannot record the meetings without the board's permission. Attendees can observe the meeting and address the board during the open forum, but must follow the board's rules— no disruptions, no recordings, etc. If the board allowed members to record meetings, permission from other attendees would not be needed, since the meetings are deemed public forums within the association. Just as judges have discretion to allow or disallow recording in their courtrooms, boards have the same discretion. If a board adopts a policy of not recording meetings, attendees must put away their cell phones and any other recording devices they might have.
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