OPEN MEETINGS, OPEN FORUM & WHO MAY ATTEND

Kinds of Board Meetings
 

• Regular Open Meetings. These are usually scheduled for the same day each month. Members can attend to observe the board conduct 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.
• Executive Session Meetings. Executive session meetings are closed to members due to the confidential nature of the topics discussed. Two day's notice must be given to the membership.
• Emergency Meetings. Emergency board meetings can be called to address an immediate issue.

Open Meeting Act

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

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) 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.)

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 conduct "Serial meetings" that seek to evade the Open Meeting Act. Serial meetings come in two forms:

1. Chain Meetings (or daisy chain meetings) occur where 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 are spokes with one person at the center (the hub). Directors never talk to each other; they each talk 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. 

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 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 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 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
 

• 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).)

Members Only (with exceptions) Can Attend Meetings

California's community associations are not part of the public sector; they are private membership organizations. As a result, the general public does not have a right to attend board or membership meetings. Unless an association's governing documents provide otherwise, the legal right to attend meetings as provided for in the Open Meeting Act is reserved for members only. (Civ. Code § 4925.)

Spouses. Although the legal right to attend board and membership meetings is reserved for members only, industry practice is to allow non-member spouses to attend board meetings. A misbehaving spouse can be excluded for disruptive behavior.

Renters. Because they are not members, renters do not have a legal right to attend board meetings. However, most boards allow tenants to attend board meetings and address the board during Open Forum, provided they are not disruptive.

Realtors. Nonmember Realtors do not have a legal right to attend board meetings even though they may do business in the development. At the board's discretion, however, they may attend.

Attorney in Fact/Power of Attorney. An attorney-in-fact or power of attorney is an agent authorized to act on behalf of and make legally binding decisions on behalf of another person but not necessarily authorized to practice law. An attorney-in-fact can manage investments, make health decisions, and do other tasks on someone else's behalf but cannot change a will or trust. To attend meetings, the person must provide the association with a copy of the power of attorney.

Lawyers. Attending board meetings is reserved to members only. (Civ. Code § 4925.) Industry practice is to prohibit non-member lawyers from attending board and membership meetings. (SB Liberty v. Isla Verde.) Members cannot avoid the exclusion by sending their lawyer with a "proxy" since proxies apply only to membership meetings, not board meetings. Moreover, proxies for membership meetings are restricted to members. (Civ. Code § 5130(a)(1).)  Lawyers who are members of the association may attend board meetings provided they are attending in their capacity as members, not lawyers. Lawyers who attend board or membership meetings on behalf of a client in litigation with the association or threatening litigation or engaged in other matters before the board could be subject to discipline by the State Bar for violation of Rules of Professional Conduct 2-100.

Interpreters. Associations are not required to provide an interpreter for attendees who speak other languages. If a member does not speak English and wants to bring an interpreter to board meetings, they may do so at their own expense. Boards should not exclude an interpreter because the person is not an association member. (An interpreter is a person who converts spoken words from one language to another. A translator is a person who converts written words from one language to another.)

Sign Language. if a deaf member wants to bring a sign language interpreter to meetings, the association must reasonably accommodate the request. Associations do not have a duty to pay for the interpreter. (Terminology: "Hearing impaired" describes people with any degree of hearing loss, from mild to severe. "Hard of hearing" refers to a hearing loss where there may be hearing that can be improved with the assistance of a hearing aid. "Deaf" refers to someone with a hearing loss so severe that they cannot hear and are dependent on visual communication such as sign language and lipreading.)

Disruptive Attendees

For disruptive attendees who shout, use profanity, or interfere with board meetings, the board may:

• Impose penalties after appropriate due process, provided the board first adopts "rules of conduct" for its meetings, such as: "No audio or video recording is allowed by attendees. However, the secretary may record the meeting to aid in the preparation of minutes. The recording is deleted once the minutes have been prepared. As provided in the "Open Meeting Act," members may observe the meeting but do not have the right to participate in the board's deliberations or votes. Members may address issues during the open forum portion of the meeting. If attendees become disruptive, they may be expelled from the meeting and/or fined." [Rules of conduct should be added to each meeting agenda so attendees know what they can and cannot do.]
• Eject them from the meeting (avoid physical contact, or they may claim assault and battery) and call the police if they refuse to leave;
• Move the meeting to a member's unit (if disruptive owners force their way into the unit, it would be trespassing);
• Obtain a restraining order;
• Broadcast meetings to the membership.

Non-Members. Disruptive non-members may be excluded from meetings altogether.

Directors. See "Disruptive Directors."

Open Forum

Open forum requirements for associations apply to open board meetings (Civ. Code § 4925) and membership meetings (Civ. Code § 5000(b)), whether conducted in-person or virtually. It means time must be set aside for members to speak on any issue, whether on the agenda or not. (Civ. Code § 4930(a).) There is no prescribed point in a meeting to hold an open forum. Some boards put it at the beginning, and some at the end of the meeting's agenda.

Time Allocation. The Davis-Stirling Act allows boards to set a reasonable time limit for members to speak to the board at open board meetings and membership meetings. (Civ. Code § 4925.) Time limits set by the board must be reasonable. A 15-second limit is not sufficient for a person to say anything meaningful. A 10-minute limit means the business portion of the meeting might never start. One to three minutes per person is fairly standard for associations. It is not uncommon for the president to adjust time limits from meeting to meeting. If only a few people attend and the board wants a robust discussion on a particular topic, the president might allow members to take more time. If the meeting has a large attendance and everyone wants to speak, the president might limit speakers to one minute to allow as many people as possible to talk.

Open Forum Topics. The Open Meeting Act allows the board to establish reasonable time limits but there is no limit on the number of topics members can raise. (Civ. Code § 4930(a).) Boards cannot create unreasonable rules that would stifle a member's right to address the board. Boards can, however, place reasonable restrictions on some topics. For example, personnel issues should be addressed privately with the board or in writing to the board, not publicly. For example, topics should not:

• involve matters outside the board's authority,
• be defamatory, indecent, abusive, or involve personal attacks or threats, legal or otherwise,
• involve personnel issues,
• involve the disclosure of confidential information,
• maintenance issues can be raised during open forums but are often better addressed with the management company in writing.

If the board has a lengthy agenda, it may ask members to limit their comments to agenda items only so everyone has an opportunity to speak to those issues before the board addresses them.

Answering Questions. During the open forum portion of board meetings, members may ask questions, but the board's ability to answer them is limited by statute. As provided in Civil Code § 4930(b), boards may:

• Briefly respond to statements made or questions posed;
• Ask a question for clarification, make a brief announcement, or make a brief report on the person’s activities, whether in response to questions posed by a member or based upon the person’s initiative.

Disruptive Behavior. Members do not have unlimited free speech rights. The right to address the board does not give members the right to shout, use profanity, or make obscene or threatening remarks. Members who engage in such behavior may be ejected from the meeting. Directors should not attempt to physically remove a member who refuses to leave. Instead, the police may be called to escort the person out of the meeting, or instead of calling the police, the meeting may be adjourned to another location without the disruptive person. In addition, the disruptive person may be fined for their behavior if there are rules against such conduct. Following are sample meeting rules:

MEETING RULES: No audio or video recording allowed by attendees. However, the Secretary may record the meeting to aid in the preparation of minutes. The recording is deleted once the minutes have been prepared. As provided in the "Open Meeting Act," members may observe the meeting but do not have the right to participate in the Board's deliberations or votes. Members may address issues during the Open Forum portion of the meeting. Attendees may not engage in obscene gestures, shouting, profanity, or other disruptive behavior. If attendees become disruptive, they may be expelled from the meeting and fined.

Boards should print the rules on each meeting's agenda to ensure everyone is aware of them. See sample agenda.

Board Meeting Notice & Agenda
 

• See Board Meeting Notice and Agenda
• See Board of Director Duties 

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