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.)
Brown Act Model. The legislature patterned the Open Meeting Act on the open meeting provisions of the Brown Act:
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.)
Therefore, 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].)]
Non-Violations. It should be noted that a majority of board members can sometimes meet without violating the Open Meeting Act.
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