Open Meeting Act. The Open Meeting Act does not allow the general public into board meetings. According to the Act, members of the association may attend board meetings and address the board; it has nothing to do with the general public. Civil Code §1363.05(b). Even though there is no expectation of privacy in open meetings, boards may adopt rules for membership-only meetings that include restrictions on recordings. It should be noted that most judges prohibit audio and video recording in their "public" courtrooms so as to avoid the disruption caused by the recordings.

Negative Aspects of Taping. Owners who bring audio or video recorders to board meetings often do so because they are threatening litigation or wish to intimidate participants into silence. Sometimes, they will have a lawyer sitting at their side as they record the meeting. Under those conditions, meeting participants are reluctant to speak freely for fear of being dragged into litigation or having their voices appear on internet websites. As a result, members' free speech rights are suppressed by the person doing the recording. For these reasons, many boards prohibit private recordings, whether audio or video.

Brown Act; First and Fourth Amendments. The Brown Act and the First Amendment are frequently cited by people (including some lawyers) in support of private recordings. Neither the Brown Act nor the First Amendment to the U.S. Constitution gives owners the right to record meetings. The Brown Act applies to governmental agencies, not community associations. The First Amendment applies to governmental restrictions on free speech and has nothing to do with recording private meetings.

Penal Code §632. 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 to membership meetings. Private membership meetings are deemed public forums for the limited purpose of free speech by the membership. Damon v. Ocean Hills; Penal Code §632. As a result, recording a board or membership meeting does not violate the Penal Code. Even so, 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.

For example, a city might allow 3 dogs per household but an association can, under its own authority, restrict households to 1 dog. The same applies to recording meetings; what is permissible by the state can still be restricted by an association.

Executive Session. It should be noted that executive sessions of the board are subject to different expectations. Those who attend such meetings have a clear expectation that their conversations are confidential. Accordingly, any surreptitious taping of such meetings would likely be a violation of the Penal Code.

Adopting Rules. Boards and committees have the authority to create reasonable rules of conduct for their meetings, such as restrictions on recording, prohibiting foul language, etc. The authority to adopt rules is normally 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. Prior to adopting such rules, boards must submit the proposed rules to the membership for review.

Preparing Minutes. Boards can record their own proceedings for the purpose of preparing minutes but prohibit 3rd parties from doing so (just as judges do in their courtrooms). Associations can also broadcast their meetings if the wish.