Overriding the President
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  California's Leader in Community Association Law May 8, 2020
OVERRIDING THE
PRESIDENT

Refusing Meetings. Our president is refusing to hold meetings. Can the other board members hold meetings without the president? If not, can we remove that person as president? -Anonymous

RESPONSE: Yes, other directors can call a meeting, set an agenda, post a notice and hold a meeting without the president. Unless otherwise provided in your articles or bylaws, board meetings may be called by the president, vice president, secretary or any two directors. (Corp. Code §7211(a)(1).) And, yes, directors can remove the president from office and appoint another director as president.

Equal Votes? Do board members all have equal weight in their votes? Or does the president have final say when the board cannot come to an agreement? -Anon

RESPONSE: All directors have equal votes. Decisions of the board require majority approval once a quorum has been established. If you have a 5-member board and only four appear at a meeting, you have a quorum and can conduct business. If the vote on a motion deadlocks 2 to 2, the president does not get to decide the outcome. The motion dies because it did not receive majority approval.

Telephonic Meetings. Our manager claims a rule change must be enacted before we can have telephonic meetings. Is that true? -Michele J.

RESPONSE: No, it's not true. Simply give four days' notice of your next meeting and include instructions on how members can call into the meeting.

Recorded Zoom Meeting. Our association will meet this week for the first time via Zoom. Are we able to keep a recorded audio/visual file of this meeting which may be accessed by board members? -David B.

RESPONSE: There are pros and cons to recording your meetings. On the plus side, you can post them in a password-protected area of your website for board members and homeowners to view at their leisure. A potential downside is they can be subpoenaed in the event of litigation. As long as everyone behaves professionally, that should not be a problem.
 
Unknown Attendees. Our governing documents limit board meeting attendance to owners, spouses, or those with power of attorney. How can we ensure that outsiders are not listening to virtual meetings? We previously disallowed a homeowner from dialing-in to meetings for this very reason. -Heidi H.
 
RESPONSE: Some programs allow you to block unwanted attendees. The downside to virtual meetings is the inability to prevent people in the same room from listening in. For open meetings, this should not be a problem.

Deaf Attendees. A number of readers responded with good information for deaf attendees. It turns out that Zoom's closed captioning feature does not make captions appear. Someone in the meeting must type the captions.


One reader's association uses a captioning company called eCaptions to provide real-time captions. The process is called Computer-Assisted Realtime Transcription (CART), similar to what a court reporter does. It has the added benefit of providing the manager with a transcription of the meeting for preparing minutes.

A link from Zoom's website explains how closed caption settings work. Also see: Accessibility Tips for Zoom Meetings; Integrating A 3-Party Captioning Service; CaptionSync: Real-Time Captioning; and Alternative Communication Services.

Executive Sessions. If a board member consistently discloses confidential information discussed in executive session, can he be excluded from future executive meetings? -Sandi M.

RESPONSE: Such behavior by a director is an ethics violation. If a strongly worded letter from your association's legal counsel does not stop the behavior, form an executive committee consisting of your remaining directors. Your executive committee would then handle executive session meetings without your ethically challenged director.

 
OPENING
RECREATIONAL AMENITIES

A number of readers asked how best to open their facilities. That depends on the county in which your association is located. Some counties continue to prohibit openings, some allow it with strict requirements, and some with relaxed requirements.

For example, Riverside County published recommended guidelines so "managers, HOAs, and residents can make responsible decisions" using pools and spas. Condominium associations that do not have staff could post the guidelines and rely on members to self-regulate. Larger associations with onsite staffing could assign someone to the pool to enforce the guidelines and regularly wipe down surfaces.

San Diego County is completely silent on the issue. Searching their website produces nothing. At best, we can infer that pools are open but limited to persons participating "in individual or family outdoor activity." It's surprising their order is so poorly written. (Order of the Health Officer.)

Los Angeles is one of the counties that is keeping all facilities closed: "Fitness areas, including basketball and tennis courts, community or recreational rooms, swimming pools and jacuzzis must be closed to all occupants, staff and the public per the Health Officer Order." (Guidance for Multifamily Residences.)

If a county allows associations to open their facilities but only if the association regularly wipes down surfaces and monitors usage, such regulations will preclude the opening of facilities for most associations since they lack the personnel to comply with the orders. If, as with Riverside County, facilities can open with recommended guidelines, boards can open their facilities and let members self-regulate. It's ambiguous orders like San Diego's that are problematic.

QUESTION: Can our board open the pool without a vote of the members? I maintain that we have a fiduciary responsibility to our members in that if we cannot ensure that no one would get Covid-19 and perhaps die from it, we need to protect our asset. Even if we had signed waivers, the club could still be sued for a wrongful death lawsuit. -Lori B.

RESPONSE: Even if the county authorizes opening of all swimming pools, your board has final decisionmaking authority. You can choose to keep your facility closed. However, ensuring no one ever gets the virus is a very high standard. That means keeping the facility closed for the next year until a vaccine is developed and everyone has been vaccinated. I suspect your membership will not stand for that. If you follow applicable county guidelines (if none, then state and CDC guidelines), it would be difficult to assign any liability against your association. You should talk to legal counsel about how best to open your facility.

HOA Doormen. Can we ask our doormen to refuse entry to any visitor, delivery person — basically, nonresidents — who will not wear a mask and adhere to social distancing? -Iris A.

RESPONSE: Yes you can. Your association, through its board of directors, has control of the common areas and your employees. You can instruct employees to refuse entry to anyone not wearing a face covering. Stores are already doing it.

Infrared Thermometers. In addition, you can use an infrared thermometer to check each person's temperature entering your building. Employees with an elevated temperature can be sent home. Vendors and guests with elevated temperatures can be turned away. Residents must be admitted, but can be advised of their high temperature so they can immediately contact their doctor. The thermometers are available online through Amazon. Some restaurants, hair salons, and other businesses are already using them.

Older People. Yesterday, it was announced that Los Angeles would be opening golf courses. Mayor Garcetti said the openings do not include citizens over 65. Many of our golfers are over the age of 65 and we want to do the right thing. Please advise. -Michael F.

RESPONSE: The restriction means Mayor Garcetti does not trust older people to behave responsibly and he has effectively put them under house arrest. All you can do is talk to your association's legal counsel and decide the best course of action for opening your association's golf course.

 

COUNTY ORDERS. Many orders contain detailed requirements. To avoid potential liability, boards should carefully review them and and consult legal counsel on how best to open their facilities.

As a general note, many counties are now offering testing to all County residents.

NorCal Counties. Contra Costa County is not allowing sports or activities that require use of shared equipment, like frisbees, basketballs, baseballs, and soccer balls, unless engaged in by members of the same household.

Shasta County is allowing pools to open but recommends regular sanitization of hard surfaces and posting a notice to encourage social distancing.

Bay Area Counties are not allowing non-essential businesses to open. Mendocino’s Order is still in draft but will likely be released today. Mono County will open lower-risk retail workplaces May 8.

Napa County is allowing tennis with social distancing; public or semi-private (e.g., association) swimming pools may open subject to facility/association rules, proper maintenance (with chlorine and bromine on established schedule) and social distancing. Early stage 2 businesses may open pursuant to state guidance.

Santa Cruz is allowing stage 2 low-risk businesses to open. Shasta County appears to be following the state's order. They are opening stage 2 low-risk workplaces pursuant to state guidelines.

Sonoma County opened Bodega Bay boat launch ramps and trailer parking areas for recreational fishing subject to guidelines. Stanislaus County has a new order with critical business infrastructure guidelines. Face coverings are recommended. Yolo County is allowing stage 2 business openings subject to guidance that can be found through their Roadmap to Recovery.

Other counties are in the process of drafting formal orders or making changes.

SoCal Counties. Ventura County's order was modified to allow use of beaches for exercise only. No gatherings, sitting, or barbecuing; only walking, running, swimming and surfing are allowed. Piers, picnic areas, bathrooms and playgrounds remain closed. Golf courses, bike shops, and in-person car sales businesses were allowed to reopen, but gyms remain closed. Businesses that don’t serve the public and have up to 10 employees can reopen.

Riverside County opened pools with guidelines, which recommend six feet of separation and swimmers should limit themselves to lanes; no large groups or pool parties; however, residents of the same household can swim together; pool furniture should be properly distanced; residents should wear a face covering when traveling through common areas; residents should bring hand sanitizer or provided by pool operator; pool operator should frequently check that shared restroom is stocked with soap and paper towels; pool operator should use scheduled time slots on busiest days; the spa should be closed or limit to 1 person or household at a time;  a disinfection plan should be created to identify frequently-touched surfaces, and a schedule created and designation of person to complete disinfection; an EPA-approved disinfectant should be used; signage should be posted reminding residents to wash their hands frequently, cover cough and sneezes, and avoid pool area if having any symptoms of not feeling well.

Los Angeles County released a roadmap to recovery infographic based on the State’s phased reopening which can be found at "Roadmap to Recovery." They also have a PowerPoint of their Roadmap. The County will allow openings as of May 8 of non-essential retail stores, with curbside pickup only. It will also allow car dealership showrooms, and golf courses, all of which must follow social distancing and infection control protocols. Hiking trails will open with social distancing and face coverings.

Updated Chart. For a list of county restrictions and links to their orders, see County Orders as of 5-8-20. NOTE: An updated chart is now posted on the website. If we missed anything, please contact us. Many orders contain detailed requirements. To avoid potential liability, boards should carefully review them and and consult legal counsel on how best to open their facilities.

 

What an awesome chart, great job! -Rick S.

The association's First Lady? Consider yourself lucky. We had a president who, on the day he took office, announced "there's a new sheriff in town." Try working in that environment. -George H.

We enjoy your newsletter immensely and it helps us so much in fulfilling our HOA duties. -Sandi M.

Your newsletters were so awesome and helpful we decided to put your firm on a retainer. -Alfredo S.

The Chart of County Orders is a terrific tool and I’m sure took quite some time to compile. Thanks very much for all you have been doing to keep us managers well equipped to address the myriad of topics this pandemic has thrown at us. You and your staff are to be commended. -Brian F.

Thank you for your newsletters, they are a great source of education and I reference them often when providing guidance to our board. -Julie H.

Thank you very much for the newsletter - always great! And thank you for the Chart of County Directives. -Teresa H.

Thank you for your newsletter's steady presence in times of distress. -Troy C.

"If someone walks their dog without a face mask..." So now dogs have to wear face masks? Your sense of humor is contagious and very welcomed. Many thanks for your excellent updates during this very uncertain time. -Anonymous

Hello, and thanks so much for this! The topic is so timely! -Suzanne H.

Thank you, as always, for a very informative newsletter. -Amy B.

Another great Newsletter. -Joseph L.

NOTE: I have a large backlog of questions from readers. I will get to them but I may have to triage them.


 
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 call us. Keep in mind we are corporate counsel to associations only.

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