Exceptions to Open Meeting
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EXCEPTIONS TO OPEN MEETING ACT

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, provided they do not 'hear, discuss, or deliberate upon any item of business that is within the authority of the board,' i.e., engage in board business. 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 boards can and cannot 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:

(1) Individual contacts or conversations between a member of a legislative body and any other person.

(2)  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.

(3)  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.

(4)  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.

(5)  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.

Attorney General Opinion. In addition to the above, the Office of the Attorney General issued an opinion that under the Brown Act board members may attend committee meetings provided they do not ask questions or make statements. (81 Ops.Cal.Atty.Gen. 156.)

Opinion. If HOA boards follow public agency guidelines, a majority of directors can attend committee meetings, seminars and social gatherings without violating the Open Meeting Act.

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

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