Open Board Meetings. The legislature patterned the Open Meeting Act on the open meeting provisions of The Brown Act. The Brown Act is a series of statutes under Government Code §§ 54950-54962 regulating 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.)
Board Meeting Defined. Board meetings are defined by the Davis-Stirling Act 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 matters of 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) as indicating 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.)
Disallowed Meetings. Boards cannot take action on any item of business outside of a board meeting. (Civ. Code § 4910(a).) "Item of business" means any action within the authority of the board, 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 Uaninous Written Consent below). Nor can Boards conduct "Serial meetings" which seek to evade the Open Meeting Act. Serial meetings come in two forms:
- Chain Meetings (or daisy chain meetings) occur where director"A" talks to director "B" who talks to "C" who, in turn, talks to "D" in an effort 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 on and action taken on business outside of an open meeting and without minutes
- Hub-Spoke Meetings (also called wheel-hub meetings) occur when directors are spokes with one person at the center (the hub). Directors never talk to each other; they each separately to a director (or manager) who coordinates and relays the messages to make a decision and take action outside of a meeting and without minutes.
These kinds of meetings are not addressed by the Davis-Stirling Act. 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 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 are allowed to 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 specifically 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 less 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 closed. 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 meeting needs to be posted.
Allowable Meeting Formats. With proper notice, the following meeting formats are allowed:
- 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. Prior to the Legislature's 2012 amendment to the Open Meeting Act, boards could take actions by 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 take actions by unanimous written consent. (Corp. Code § 7516; Corp. Code § 7211(b).)
Violations of the Open Meeting Act. Sometimes boards make decisions in closed meetings in violation of California's Open Meeting Act (Civ. Code §§ 4900-4955). Members can go into court for injunctive relief and civil penalties up to $500 for each violation. (Civ. Code § 5145, § 4605, § 4955.) Violations of the Act do not automatically invalidate board actions. In the absence of any Davis-Stirling Act cases, we must look to the Brown Act for guidance. As the court explained in Galbiso v. Orosi Pub. Util. Dist. (2010) 182 Cal. App. 4th 652, 670-71, board actions which are taken in violation of the Brown Act are not automatically void, and usually will not be invalidated unless prejudice is shown:
The cases have held that a violation of the Brown Act will not automatically invalidate an action taken by a local agency or legislative body. The facts must show, in addition, that there was prejudice caused by the alleged violation. (Cohan v. City of Thousand Oaks (1994) 30 Cal.App.4th 547, 555-556; North Pacifica LLC v. California Coastal Com. (2008) 166 Cal.App.4th 1416, 1433.) ‘Even where a plaintiff has satisfied the threshold procedural requirements to set aside an agency's action, Brown Act violations will not necessarily ‘invalidate a decision. Appellants must show prejudice.’ (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1410.)
(See also North Pacifica LLC v. California Coastal (2008) 166 Cal.App.4th 1416, 1433-34. [“In analogous situations under the Ralph M. Brown Act, courts have held that violations of that Act do not automatically invalidate the actions taken by a local public entity at the public meeting to which the violations pertain. ‘Even where a plaintiff has satisfied the threshold procedural requirements to set aside an agency's action, Brown Act violations will not necessarily ‘invalidate a decision. Appellants must show prejudice.’ (Cohan v. City of Thousand Oaks [ (1994) 30 Cal.App.4th 547,555-556 [no prejudice shown from violation of Gov.Code, § 54954.2, subd. (a), which ‘requires that an agenda be posted at least 72 hours before a regular meeting and forbids action on any item not on that agenda’].)’ (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School (2006) 139 Cal.App.4th 1356, 1410, italics added.) Because the Brown Act provides a ‘virtually identical open meeting scheme” to the Bagley-Keene Act (Travis v. Board of Trustees of California State University, supra, 161 Cal.App.4th at p. 342), this principle of the Brown Act should apply equally to the Bagley-Keene Act. (See Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 799 [reasoning used to interpret Brown Act equally applicable to Bagley-Keene Act].)]
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