Over the last few business days, our firm has received several calls regarding the Coronavirus (COVID – 19). We understand the obstacles created by COVID – 19 because successful association governance depends upon engaged community involvement and personal interaction.
The purpose of this blog post is to provide a brief overview of our response to some of the common questions we have received. It is based upon information which is currently available as of March 17, 2020. The recommendations set forth herein are subject to change based upon governmental mandates.
Continuance of Necessary Business Operations:
Community associations, as non-profit corporations, should continue to perform essential business operations (i.e. collect Member assessments and pay Association bills) during this epidemic. As of the time of this drafting (3/17/20), President Trump released new guidelines to slow the spread of COVID – 19 by advising the public to avoid groups of more than ten (10) individuals, among other safeguards. Governor Newsome recommends that restaurants eliminate dine-in options and the closure of movie theaters and health clubs. Medical professionals have uniformly taken the position that social distancing can minimize virus transmission. In view of those protections, boards, in consultation with management and legal counsel, should consider the temporary closure of community-based events and functions, particularly in situations where residents constitute a high-risk demographic (i.e. age-restricted communities).
Board meeting procedure is regulated by an association’s governing documents and the Civil Code. An association’s by-laws will set forth the frequency of board meetings. Boards should consider postponing non-essential general session board meetings, or in the alternative, conducting essential association business in executive session only via teleconference as permitted by California law. Boards may conduct general session and executive session board meetings via teleconference upon proper notice which identifies at least one physical location so that Members of the association may attend (Civil Code Section 4090 (b)). At least one director or a person designated by the board shall be present at that location (Civil Code Section 4090 (b)).
To the extent possible, efforts should be made to protect Member rights, such as the right to attend board meetings and participate in homeowner’s forums. How do we balance those rights with current social distancing recommendations? There might be a viable path under the Open Meeting Act. Members possess the legal right to attend general session board meetings and shall be entitled to attend teleconferenced board meetings (Civil Code Section 4925). An argument could be made that Members may attend general session board meetings via teleconferencing means if such board meeting was previously noticed as a teleconference board meeting and the procedural requirements are satisfied as referenced above. Discuss with legal counsel whether the Open Meeting Act could be interpreted to allow Member attendance (via audio and/or video means) at teleconferenced board meetings instead of physical presence at the meeting location.
We recommend that boards consult with legal counsel to discuss teleconferenced general session board meeting procedure before deciding to hold open meetings without members and then issuing minutes thereafter. It is unclear how a superior court judge, in the event of a later Member challenge, might evaluate the handling of board meeting procedure during this current state of emergency. A possible judicial response might be to review how the association attempted to substantially comply with the law using the governance tools that are presently available through the Open Meeting Act.
Medical professionals state that individuals respond to crisis and stress in different ways; it is very likely that some may be scared while others may not be. Residents may look to the association and management for guidance and direction. For that reason, transparency is desirable. Boards should work with their management partners and legal counsel to develop a policy statement which identifies how your community intends to respond to COVID – 19 with respect to association meetings and community affairs. In the event of common area closure or facility limitations, notices should be posted which explain the board’s reasoning in that regard. Association residents should be directed to governmental agencies (e.g. CDC, California Department of Public Health, and county health agencies) for more information.
On March 12, 2020, California Governor Gavin Newsom issued Executive Order N-25-20 (“Order”) which modified how legislative bodies may conduct public meetings via teleconference under the Brown Act. That Order does not apply to private association meetings which are governed by the Open Meeting Act and we are not aware of emergency legislation that might govern how association meetings are expected to be handled during this health crisis. Although not applicable, the spirit of the Order’s final provision should be considered as we think about association governance during this time; namely, the Order concludes by stating that, “all state and local bodies are urged to use sound discretion and to make reasonable efforts to adhere as reasonably as possible to the provisions of the … Brown Act, and other applicable local laws regulating the conduct of public meetings, in order to maximize transparency and provide access to their meetings.”
|It is critically important that boards work closely with their management partners and legal counsel to develop practical solutions regarding Board governance which, to the extent possible, complies with the Open Meeting Act while protecting Member safety.|
-Blog post authored by TLG Attorney, Kumar S. Raja, Esq.