Neither individual board members nor attendees at a board meeting have the "right" to electronically record board meetings.
Open Meeting Act. Association meetings are not public gatherings in the sense that the general public can attend the meetings. They are deemed "public meetings" for members of the association. Under the Open Meeting Act association members (not the general public) can attend board meetings and address the board. (Civ. Code § 4925(a).) Because they are "board meetings," boards can set meeting procedures and govern the community’s business and affairs. (SB Liberty v. Isla Verde Assn. (2013) 217 Cal.App.4th 272, 284.) That means boards of directors can adopt rules that restrict the recording of their meetings.
Brown Act. The Davis-Stirling Open Meeting Act, which governs board meetings, is separate from the Brown Act. There is no statute or case that 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 recording of the open meetings that are 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 Recording. 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.
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 are not going to 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. This is especially true for executive session disciplinary hearings.
First Amendment. The First Amendment is frequently cited by people (including some lawyers) in support of private recordings. The First Amendment to the U.S. Constitution does not give owners the right to record private meetings. The First Amendment applies to governmental restrictions affecting free speech. Associations are private organizations with the right to regulate speech--the First Amendment does not apply to a private organization's 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.) As a result, recording a board or membership meeting does not necessarily violate Penal Code §632.
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.
Rules & Penalties. 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, 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 those who violate the rule.
Accordingly, 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.
Membership Notice. Although meeting rules and penalties are not listed in Civil Code § 4340(a) as an operating rule requiring notice to the membership prior to adoption, boards should nonetheless 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 own proceedings for the purpose of preparing minutes but prohibit third parties from doing so (just as judges do in their courtrooms). Associations can also broadcast their open meetings if they wish.
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 if it decides 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 can address the board during open forum but must follow rules established by the board--no disruptions of the meeting, no recordings, etc. If the board were to allow members to record meetings, permission would not be needed from other attendees since the meetings are deemed public forums within the association. Just as judges have discretion to allow or not allow recording in their court rooms, 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.
ASSISTANCE: Associations needing legal assistance with this issue can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.