Candidate Misdemeanors
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  California's Leader in Community Association Law September 28, 2020
ANNUAL MEETINGS
AND OTHER MISDEMEANORS

QUESTION: I was asked by a committee member if they could be on the board if they had misdemeanors that are 35 years old.

RESPONSE: Misdemeanors are irrelevant. Felonies are relevant only if they prevent the association from purchasing or maintaining fidelity bond coverage. (Civ. Code §5105(c)(4).

No Volunteers. We sent out a call for candidates for 3 seats on our 7 member board. No one volunteered. Do we have to keep sending out calls for candidates? Our election rules do not allow for write-ins. –Kristi H.

RESPONSE: If no one is willing to run for the board, there is no point in holding an election — there is no one to vote for. You still hold an annual meeting as required by your governing documents but the current board remains in place. At the annual meeting, everyone gets together and talks about the prior year's accomplishments and what is planned for the coming year. Prior to the pandemic, I attended annual meetings where some had catered meals for attendees, some had wine and cheese and live music. Now we sit in front of our computers and see attendees on a video screen and inspect the interiors of their units.

Giving Away Votes
. Can a director give their vote to another director, giving that director two votes on an issue and not vote themselves? –John E.

RESPONSE: No, directors cannot give their votes to another director (or to anyone else for that matter). Attending meetings and voting are nondelegable duties. That is what directors are elected to do.

Inspectors of Election. Our board voted to allow two homeowners to serve as the election inspectors for our election. Is there any minimum or maximum number of inspectors for the board election? Our community has more than six homeowners who want to service as an inspector. –Lily C.

RESPONSE: By statute, the board can only appoint one or three inspectors (Civ. Code §5110(a).) The other volunteers can be appointed to assist the Inspector(s).

Executive Session Violation? Every month we want to fire our manager but there is usually a reason to postpone. We would like to do this in executive session, so I put executive session on the agenda every month. We are supposed to include a general subject which, in this case might be anything from "personnel issues" to "firing property manager." But I can't think of anything that would not alert the manager that we are talking about firing him/her. How long of a jail term would we be looking at if we simply put "Executive Session" on the agenda with no further details? ‑ Tom U.

RESPONSE: It's ten years in solitary confinement but you can shave off two for good behavior. Your agenda should state "Personnel Issues." If the manager is on a contract, then list "Contract Review." If it's highly sensitive and you fear the manager may sabotage your computer system, hold an emergency executive session meeting with directors to discuss the matter, appoint two directors to meet with the manager and terminate his/her employment. Walk the manager out the door and then unplug the computer and have an IT person reset passwords and backup files. Don't forget to talk to legal counsel about the basis for termination. You want to make sure everything is done properly.

No 2020 Election. With regards to the election timeline; are there any repercussions to not having an election in 2020? –Michele J.

RESPONSE: It would be nice if we could completely erase 2020 from the calendar. Are there repercussions to not having an election? Potentially. If a member wanted to, they could run into court for an order that one be held. At this point, however, Marjorie Murray's SB 323 timeline makes it impossible to hold one this year. Depending on your bylaws, you can schedule one for early 2021 or wait until your normal annual meeting date. You should talk to legal counsel about how best to proceed.

Recording Zoom Meetings. I am so happy that I found your newsletter there's always something new to learn! We record our Zoom board meetings. Should the recordings be available to members to view? Would that also apply to the executive session meetings? -Mitchelle V.

RESPONSE: You can record and post your open meetings in a password protected portion of your association's website for members to view. But not executive session meetings. Those deal with confidential matters. It's already too easy for a disgruntled director to release confidential information. There could be serious legal repercussions if recorded executive session meetings were posted on the internet for all to see.

Raising Dues Annually. I've lived in the same complex for 12 years and every year our dues have gone up. This past year they went up 5.5%. I am tempted to have a revolt and change the bylaws to limit dues increases. Can boards keep raising the dues by 5% year after year? Can we amend our bylaws to limit dues increases to 2% per year? –Luke B.

RESPONSE: Let's hope your directors don't get elected to political office. By statute, directors can raise assessments up to 20% every year. You could amend your governing documents to limit increases but it wouldn't do any good. The statute overrides any such limitations. (Civ. Code §5605(b).)

Worst Case Scenario. In defense of your board's actions, small cost of living increases each year to keep pace with inflation make sense. It is actually harmful to go 12 years with no increases. That means the board is deferring maintenance. In a worst case scenario, significant deferred maintenance could result in roof and plumbing failures, property damage, lawsuits, special assessments, and loss of property values. I've witnessed it many times.

Cost of Living Increases. If a board keeps common areas well-maintained and reserves healthy, it enhances property values and avoids special assessments. In addition, regular cost of living increases allow owners on fixed incomes to make adjustments to accommodate the increases and, if necessary, make orderly plans to move to lower-cost housing.

AFTER THE PANDEMIC?
EARTHQUAKES!


Dr. Lucy Jones (US Geological Survey and CalTech Seismologist), Glenn Pomeroy (CEO, California Earthquake Authority) and Adrian Adams will discuss the impact of the next major earthquake on California's community associations.

What can boards do today to avoid a catastrophe? What should be done after after the big one hits?

The program, California Shakin', is approved for 1.5 CE credits for managers. It will be presented Tuesday, October 13 from 11 am to 12:30 pm. CLICK HERE to register.


NorCal Counties. The following Counties have changed Tiers: Alameda (Purple to Red); El Dorado (Red to Orange); Lassen (Red to Orange); Marin (Purple to Red); Mariposa (Orange to Yellow); Nevada (Red to Orange); Riverside (Purple to Red); San Luis Obispo (Purple to Red); San Mateo (Purple to Red); Solano (Purple to Red); Tehama (Purple to Red).

Alameda County issued a press release that even though they have moved to the red tier, there will be no change at this time to the permitted or prohibited activities. One of the first priorities will be the reopening of schools. Alameda County Press Release

Butte County announced that two schools have met the criteria to reopen and the Health Department is working with them to determine a reopening date. Butte County Press Release.

Contra Costa County has allowed nail salons to open indoors. They have also issued a new Health Order requiring local health providers to expand testing. Contra Costa County Order.

El Dorado County moved from the Red to the Orange Tier and published a chart indicating what is open, open outdoor only, or remains closed.

Fresno County has K-12 Return to School Guidance, as well as a School Waiver Letter and Application: FCDPH School Waiver.

Lake County issued a press release clarifying that local businesses should not be concerned about enforcing face mask requirements: Lake County Press Release

Madera County has now begun accepting school waivers. The link to information on this issue can be found here: Madera County School Waiver.

Mendocino County has a new order removing portions that are duplicative of the State Order and clarifying permissible activities. The Order also removed almost all of the local restrictions specific to the tourism industry. The household support group has been increased from 6 to 12 people. Finally, the Order removes the requirement of restaurants, wineries, and tasting rooms to discontinue serving alcohol at 8 pm.

Nevada County issued a press release indicating the move to the orange tier and indicated changes to business operations under this tier.

Sacramento County has a new Order limiting indoor operations of certain sectors. Nail salons and physician-ordered electrolysis are allowed to resume indoor operations with modifications.

San Francisco has a new Health Directive dated 9/18/20 which allows for indoor museums, zoos, aquariums, and art galleries to open with modifications: Indoor Museums.

San Mateo County moved to the Red Tier and issued a press release.

Sonoma County has a new amendment to their Order to align with the existing Health Order from the State. The amended Order means that businesses don’t have to wait for amendments to reopen when Sonoma County moves to a new tier.

Stanislaus County linked to the CDPH Guidance on expanded personal care Services.

Tuolumne County has a new Order that indicates all current and valid State orders, including the Blueprint for a Safer Economy, are in effect in the County. The County also has a new Order modifying short-term lodging Orders to comply with the Blueprint.

Yolo County noted that they are one week away from moving to a lower tier. They also noted the new openings permitted by the State: indoor nail salons and physician-ordered electrolysis.


SoCal Counties. Imperial County amended its Health Order to open nail salons.

Riverside County moved to red tier for the state’s Blueprint for Safer Economy.

San Luis Obispo County moved to red tier for State’s Blueprint for Safer Economy.

San Bernardino County nail salons are open indoors pursuant to State’s loosening of guidelines for all tiers. The County issued guidelines for Halloween.

Santa Barbara County updated its Order to conform with State’s loosening of guidelines for all tiers.

Ventura County changed its Health Order to allow outdoor alcohol-serving establishments to be open until 11 pm. Only members of same household may sit together at a single table. Also, patrons can only be on the premises for a maximum of 90 minutes.


READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 9-24-20. The chart is also posted on our website.


Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too, but you have to actually hire us. It's okay, we're friendly. You can talk to us. Keep in mind we are corporate counsel to California associations only.


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