A "virtual meeting" is one conducted by teleconference or video conference where directors and members can participate in real time.
Director Attendance. Board members who cannot physically appear in person at a board meeting (whether regular, special, emergency, or executive session) can attend electronically by telephone or video. (Civ. Code § 4090.) They can attend if the absent director can hear all other board members, and all other board members can hear the absent director. Attendance in this manner counts as if the director were physically present in the meeting. (Civ. Code § 4090, Corp. Code § 7211(a)(6).) If the meeting is in executive session, directors can all attend virtually by conference call or video conference.
Member Attendance. Beginning January 1, 2024, board and membership meetings can be held virtually without designating a physical location for members to attend. To hold virtual meetings where members are allowed to attend, the following conditions must be satisfied (Civ. Code § 4926(a)):
1. Technical Instructions. The notice of the meeting must contain clear technical instructions on how to participate.
2. Contact Information. The notice must contain a telephone number and email address of a person who can provice technical assistance before and during the meeting.
3. Individual Delivery. A reminder that members may request individual deliver of meeting notices, with instructions on how to do so.
4. Ability to Participate. Every director and and member has the same ability to participate in the meeting that would exist if the meeting were held in person.
5. Roll Call Vote. Any vote of the directors shall be conducted by a roll call vote. (Directors continue to make motions and hold discussions as they would at an in-person meeting. However, voting by directors must be conducted by a roll call vote (each director is called by name, and his/her vote recorded individually).
6. Telephone Option. Any person entitled to participate in the meeting shall be given the option of participating by telephone. (Some members might not have access to the internet for videoconferencing but could call into the meeting.)
Exception to Virtual Meetings. A meeting at which ballots are counted and tabulated pursuant to Section 5120 cannot be entirely virtual. It must conduced (i) entirely at a physical location or (ii) a hybrid meeting with virtual elements plus a physical location. (Civ. Code § 4926(b).) What remains unclear is the location of the ballot tabulation. There is a split of opinion in the legal community. Following are the two interpretations:
Onsite Tabulation. Those who argue for the Inspector of Elections to physically attend the meeting and count ballots cite Civil Code 5120(a), which states: "All votes shall be counted and tabulated by the inspector or inspectors of elections, or the designee of the inspector of elections, in public at a properly noticed open meeting of the board or members. Any candidate or other member of the association may witness the counting and tabulation of the votes . . ."
Offsite Tabulation. Because of the high cost to associations of an Inspector appearing in person, others favor an interpretation that allows the Inspector to appear virtually as long as the camera clearly shows the inspectior counting and tabulating votes. They point out that "in public" means able to be viewed or witnessed, i.e., not hidden, which is satisfied with a wide-angle camera showing the counting.
Hybrid Meetings. Boards can also hold hybrid meetings where directors meet in person with some or all members observing the meeting via Zoom. Hybrid meetings can be especially important for associations with seasonal residents, i.e., "snowbirds" who fly in for the winter and leave during the summer. It allows them to attend meetings. Hybrid meetings are also useful for presentations by vendors and consultants who might otherwise be unavailable to attend in person. They can also be used to reduce legal fees. Having counsel attend an executive session by video conference eliminates drive-time charges.
1. Technology Setup. The technology for hybrid meetings is relatively inexpensive and easy to set up. All you need is a laptop, a medium or large-screen TV on a wall, a wide-angle webcam, and a conference speaker. I recommend a Bluetooth speaker with extension microphones to make it easy for everyone to hear and be heard. There is a large selection of affordable equipment to choose from. A techie can help boards decide what is best for their meeting room, purchase the equipment, and set up everything. It pays to invest in good equipment. Doing so will give boards the flexibility and convenience to hold meaningful hybrid meetings.
2. Notice of Hybrid Meeting. The notice of meeting should include a statement that, as a courtesy only, the board is making the meeting available by Zoom and teleconference for those who cannot attend in person. The unexpected loss of internet service should not derail a hybrid meeting since Zoom provides a teleconference dial-in phone number for every videoconference meeting for those who want to participate by telephone only. If the internet goes down, remote attendees can switch over to the teleconference line for the meeting. The notice of meeting should also state that if an attendee has technical issues, the meeting will continue with those present in person.
Recording Meetings. With the board's permission, the secretary may record open board meetings to assist in the preparation of minutes. Once minutes have been approved by the board, the recording should be erased. Even though the secretary may record meetings for the purpose of preparing minutes, the board can disallow recordings by others, whether it be members or other directors. If an association has kept recordings of its meetings, members might request copies. If so, the board can, but is not required to, provide access to the recordings. Minutes must be provided by statute but recordings used to prepare minutes are not on the list of records required by statute to be made available to members for review and copying. See Records Not Subject to Inspection.
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