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Can the Board Members meet outside Board meeting

Started by RaghunathK • 22 replies • 15915 views

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RaghunathK (California)
Posts: 1
Posted:
Is it legal for Board memebers to have meetings other than the Board Meeting, to discuss and thrash out the association issues? We were trying to adopt this option in order to make our monthly Board meeting more effective. There will not be any motion made or decision taken during those meetings... its all about thrashing thoughts and ideas so that the subsequent board meetings can be effectively done...

Our community is in California... any thoughts please?
RichardP13 (California)
Posts: 1,767
Posted:
Being you are in California, Association must follow the Open Meeting Act, Section 1363.05 of California Civil Code. When a majority of the Board meet to discuss and thrash Association issues, then the same rules that apply to a Board Meeting apply to your discuss and thrash meeting, 4 day notice and agenda to the membership and they have the option and opportunity to attend.
LarsA (Arizona)
Posts: 1
Posted:
Here in Arizona, our BOD has provisions in our By-laws to hold discussion meetings outside of the regular meeting. At such non-public meetings, we (as a board) cannot vote on any issues pertaining to the management and operation of the HOA. Minutes are generally not taken at these non-public meetings. It's basically the same as anyone attending a committee meeting. The only provision we must follow is the "calling" of such a private meeting must be in one of two ways:
1) The Board President may call a special [discussion] meeting giving 48 hours notice, or
2) Any two Board members may call a special [discussion] meeting giving 48 hours notice.

I've considered going to bi-weekly board meetings just to get through all the agenda items ... we constantly run out of time at each of the monthly meetings.
DanielH1 (California)
Posts: 482
Posted:
I'm with Richard on this one. The Davis Sterling Act is clear that you can't thrash out issues without an full-blown, properly noticed meeting.
MaryA1 (Arizona)
Posts: 388
Posted:
Lars,

These discussion meetings must be treated the same as any other board meeting. The AZ open meeting law requires a notice of ALL meetings of the assn. Anytime a quorum of the board gathers to discuss assn business, whether any action or voting takes place, it is considered a meeting. If these discussion meetings are not being noticed,then your BOD is in violation of the HOA Open meeting law, re: 33-1248 (condos) or 33-1804 (planned communities).

Frankly, there is no reason why the business of the HOA cannot be conducted in a monthly board meeting. Ours usually runs 1 - 1 1/2 hours plus an additional 30 min for the executive session. Rarely do we run over this time. Our assn has 1,702 members, 10 playgrounds and 15 lakes -- so we have a lot to take care of. Our manager is very organized and the Pres sticks to the agenda and makes certain the board members stay on course. All it takes is organization and sticking to the agenda.
DorothyO (Washington)
Posts: 293
Posted:
I've just been catching up on some of the recent HOA posts and came across this one regarding the open meeting law for Boards. This is one I can never quite understand. (I'm in Washington state). There are 40 houses in my development. We have one small park with a play structure, basketball court, one picnic table and two park benches, and a wetland. We have no common buildings. When we hold our annual HOA meeting we rent the community room at the local fire station. Usually, half the homeowners show up, but not always. Last year one of the homeowners called another at home and browbeat him to come to the meeting because we needed one more to have a quorum to vote.

The Board, all three of us, meet once a year before the annual meeting at one of our homes. By then we've sent out notices for the annual meeting, asked for any items wished to be included in the agenda, and asked for nominations. With this information in hand, we plan the annual meeting at this Board meeting. Throughout the year we communicate through phone or e-mail.

With no common room/building are we seriously expected to occupy a public space just in case someone might show up for a one hour meeting, which is all they have ever been? It's complicated enough to get just our three schedules to fit, and two of us are retired! Are we really not allowed to talk, thrash, bounce things off to each other about association business outside a meeting forum? What if one our homes was used and a miracle happened and fourty people showed up? I guess I'm wondering how this "open meeting" works for an HOA like ours.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Dorthy,

An open meeting just requires that notice be given to the membership of when and where the board/committee will meet and that if anyone shows up, they be allowed to sit in on the meeting to observe and at an appropriate time be offered a time (limited if you desire) to address the board.

My association has board meetings every month. The Architectural committee has a meeting once a month. A general membership meeting is held once per year.
Other then the general membership meeting, it's rare that someone outside of the Board or committee attends. As long as notice is given so members have the opportunity to attend, we are in compliance with my States open meeting requirements.

Question: How are you able to get everything done with only one board meeting a year? I expect that you have a management company, but how does the board approve repairs and expenditure of funds?

Tim
MaryA1 (Arizona)
Posts: 388
Posted:
Dorothy,

I would say your board is in violation of your state's open meeting law if you are conducting business through email or telephone. The law states all meetings of the board must be open to the members. Most assn's that have no meeting place meet each month in the homes of the board members. When I lived in a small HOA of 49 homes this is what we did. Oftentimes the meeting was in the board member's garage; just back out the cars and set up chairs. If it's cold outside just close the door. For the annual meeting we sometimes asked the members to bring their own chairs as the turnout was much greater. Or the board can rent a meeting place which is what my current board does -- we meet at the elem. school in our neighborhood.
SusanW1 (Michigan)
Posts: 5,202
Posted:
Bylaws are a beautiful thing: if they say business can be conducted by email or other electronic devices, they may do so. Also, there is a "meeting without a meeting" clause that can allow them to pass motions, if everyone agrees and it is ratified at the next regular meeting - which would be your "open" meeting.
SusanW1 (Michigan)
Posts: 5,202
Posted:
. . and that was for Dorothy in WA. not CA.
SusanW1 (Michigan)
Posts: 5,202
Posted:
. . and that was for Dorothy in WA. not CA.
DorothyO (Washington)
Posts: 293
Posted:
Thank you all for replying. I checked the RCW's (Revised Code of Washington) and luckily we don't have an open meeting law. Any meetings can be held "with or without" notice. Our Bylaws state the same. Also, the RCW allows for electronic transmission communications, as do our Bylaws, as long as they are agreed to by all participating parties. So, we're good with all that.

As for Tim's question, how do we get things done with just one Board meeting a year? No, we do not have a management company. If a street light bulb goes out (we are responsible for the maintenance of our lights) I call the electrician and get it fixed. The bill goes directly to the Treasurer. Our Treasurer pays our monthly bills. If the storm drains get plugged with leaves, I'll go out and clear it off. If someone's boat or trailer is parked beyond the grace period, I call them and remind them they'll have to move it. This is a REALLY low-maintenance organization as far as problems and issues go. When there is an issue that requires discussion us three Board officers either talk about it via the phone or e-mail. Which, I discovered is perfectly legal, and quite frankly, makes sense. Of course, the sticky wicket is if you have the rogue, power-hungry officers who don't feel the need to consult anyone else when making decisions. Which is why I keep getting elected President. No one else wants to serve and I'm known for doing the doing research, getting all the facts, hearing all sides and being fair. We have three potential new homeowners moving in. I hope none of them will be all hepped up to "change" the CC&R's!!
SusanW1 (Michigan)
Posts: 5,202
Posted:
Dorothy - hopefully, the BOD will leaves their post in such shape that other members can take over and run the HOA in the future.

The "shoes" should not be so large as to prevent someone else from stepping in to them.

I have seen HOA's and other groups run their organization in such a way that it is imposssible to figure out. Some board members think they have to do everything, if fact, they have to make sure it gets done.

DorothyO (Washington)
Posts: 293
Posted:
Susan,
You are exactly right. Which is why, since I've been President, I've worked to make sure everything necessary to manage the association is clearly organized, from creating a Minutes Book from 1992 to present (we had nothing)both Annual and Board, a Governing Documents Book containing CC&R's, Bylaws, Resolutions, (again, no such animal), an ARC folder for all Architectural Review approvals (there was zero record of this), and a file box with yearly information. Our Treasurer is also extremely organized and will be training someone to fill that position in January, God willing! Anyone who wants to try their hand at being President should be at ease to see, not only the process in place, but the history as well, to help them understand more about the Association. From a legal perspective, the paper trail was alarming when I took over. Now we are all legally recorded, protected and up-to-date. Still, it would only take one doofus to unravel any carefully constructed operation, yes?
MaryA1 (Arizona)
Posts: 388
Posted:
Dorothy,

Copied below is the applicable section of RCW which states board meetings ARE open to members, which in effect is your open meeting law.

RCW 64.38.035
Association meetings — Notice — Board of directors.

(2) Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners. Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communications with legal counsel; and discuss likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified. The requirements of this subsection shall not require the disclosure of information in violation of law or which is otherwise exempt from disclosure.

DorothyO (Washington)
Posts: 293
Posted:
Mary,
Howdy. This code addresses both the Annual Meeting and the Board Meetings. The first paragraph addresses the requirements for the Annual Meeting of the Association, and the notification laws are very specific as to procedure. This second paragraph addresses requirements for the Board meetings, for which there are no notification specifics. It only says the meetings shall be open to any member, and then gets into the specifics and when it can be closed. It does not say we must provide notification. Splitting hairs I know. But hey that's what the legal world is!

My main concern has always been if we send out a notice of a Board meeting how do we know how many will show up and where do we hold it to accommodate an unknown? Five in my living room or twenty? Book a community room (none free that I know of in this town)for three people, in case others show up? In the four years I've been President no one has asked to attend a Board meeting or asked to see Minutes. We automatically sent out Minutes from a Board Meeting we had in the middle of the year when we were working on governing documents review. So, it is clearly not the case that we are operating in secret, which I think is the intent of the RCW. Should we ever get anyone interested in attending a Board Meeting we'll get some input from the members on the best way to accommodate a public meeting in the absence of a meeting place. Because one could make the case that yes, we made it open, but we held it in a place that was clearly designed to hold only a few people. Was our intent to discourage and exclude? Or, why are we paying for a room when no one shows up anyway?

So, are we operating illegally? No. Not one member does not have access to this Board. Not one member has been denied the Minutes of any Board meeting. Let's not forget the standard bearer, "Is it reasonable?" (not to mention "intent") so often applied in murky legal issues.

Now, speaking of murky, Mary, I have to go shovel some snow! Arizona is looking so good to me right now!
MaryA1 (Arizona)
Posts: 388
Posted:
Dorothy,

IMO, the state statute leaves a lot to be desired especially since it does not address giving notice for a board meeting. However, the fact that it does state that board meetings are open to members means it must be noticed, otherwise they would not be able to attend.

Making available meeting minutes does not equate to having an open meeting. The board should meet on a regular basis and those meetings must be noticed. Since you do not have a meeting place in your community, unless the board is willing to pay to rent a meeting room, the meeting should be held in a board member's home. If too many members show up to accommodate them inside then just move the meeting to the garage or patio. In the notice you may ask that members wishing to attend a board meeting should call the Sec for the location and also bring their own lawn chair.

I've found that judges are not very understanding when the open meeting law has been violated. And, the BOD should never think that no one will ever file suit against them for this issue. Some people will file a lawsuit over the most trivial thing so it's wise not to try to second-guess what the members will do. Your state law says meetings must be open so the BOD should get in the habit of noticing their meetings. My assn has a 5-member board and a 3-member advisory committee and we also have no meeting room. We rent the library space in our local elementary school. Most months there are no members in attendance so we could very easily meet in one of our homes. If you look around you can sometimes find a place to meet with no rental fee. I once belonged to a bird club that held monthly meetings at a local Church. The Church did not charge anything for the meeting room. I know of some assn's that meet at their mgmt co's office.

Ugh, I feel for you, Dorothy. I'm too old to be shoveling snow. LOL The last couple of weeks have been colder but now we're hearing that it's going to warm up enough to wear shorts again. I just put all my summer clothes away and hooked up the electric mattress pad (much better than an electric blanket!).
NameW (Virginia)
Posts: 74
Posted:
You are stuck with the California statutes.
KW3 (California)
Posts: 146
Posted:
Hi, You guys really have to pardon me for asking questions regarding this "outside of meeting" discussion and communication:

First, what is the definition of "meeting" in the open meeting law? What exactly constitutes a "meeting"? Are all kinds of discussion or communication "meeting"? I thought discussions and communications are not necessarily "meetings" simply because the terms are different.

Second, if there is no records OFFICIALLY kept for some discussions or communications, how should they be asserted as "meeting"?

My bottom line question: do board members have an allowance for discussing or communicating association business "outside of all board meetings"?
MaureenM1 (PA)
Posts: 344
Posted:
Can the President and Vice President (executive board) of our HOA meet with the PM to prepare for our Annual Meeting without all the other board members in attendance?

TimB4 (Tennessee)
Posts: 21,059
Posted:
Maureen,

Typically it's best to start a new topic then to reactivate an old thread (in this case, 2 years old).
This is because laws change and what was good advice in 2010 may not be good advice today.

To answer your question, yes they can providing that the two of them do not make a quorum (as this would then be considered a board meeting). A quorum is typically a majority of the Directors. If you have 3 directors, 2 make a quorum. If you have 4 or 5 directors, 3 make a quorum.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By LarsA on 11/09/2010 1:30 PM
Here in Arizona, our BOD has provisions in our By-laws to hold discussion meetings outside of the regular meeting. At such non-public meetings, we (as a board) cannot vote on any issues pertaining to the management and operation of the HOA. Minutes are generally not taken at these non-public meetings. It's basically the same as anyone attending a committee meeting. The only provision we must follow is the "calling" of such a private meeting must be in one of two ways:
1) The Board President may call a special [discussion] meeting giving 48 hours notice, or
2) Any two Board members may call a special [discussion] meeting giving 48 hours notice.

I've considered going to bi-weekly board meetings just to get through all the agenda items ... we constantly run out of time at each of the monthly meetings.

Lars,

Congratulations! You just won the prize for violating the HOA Open Meeting Law found in ARS 33-1804 for HOA's or 33-1248 for Condominiums. Your prize is that you and your fellow board members are personally liable to each and every member of your association in any lawsuits that they may wish to file against you.

You lost your immunity from lawsuit by acting in a manner that no reasonable person in a similar situation would. By definition, a reasonable person does not violate the statutes.

I would strongly suggest that you at least read the applicable statutes and even better would be to seek out legal advice.

BTW, if your board needs to meet every two weeks, it means that you are not delegating day-to-day management to the officers, employees, or agents of the association. All the foregoing reflects an extreme ignorance of both law and normal corporate management. I would strongly suggest that you seek out some community college classes for yourself and the other board members.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Damn! I did not notice that this thread was two years old. Sorry.

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