Recording of Open Board Meetings in VA

If the person does his recording openly (ie, with an obvious device in plain sight, or by announcing it to all concerned), he is not violating any law, unless there is a police officer in the room.

In that case, in some states, he could be committing a crime.

Ask the gentleman who gave you the information to provide more facts, just like you said to us. I looked up the privacy act of 1974, and that has nothing to do with this situatio. the only penal code I found was California, and this is not California, so it is moot.

Hi PjW:

Do you feel they would have included this option in the State Statutes if it was illegal? Many government officials are attorneys ... and the laws are checked by attorneys before implementing.

No ... it is not against the law.

I know in some states it is against the law to record telephone conversations or record telephone conversations without one or both parties knowledge (varies by state).

That was my thought - I mean why would VA create a law that runs afoul of a federal law -it didn't make sense.

I have checked it with dpor/cic (The Common Interest Communtiy Board) and the CAI (community association institute) and while neither said the recording was in violation but I since this other board member was through out words like "federal judge" and "jail" I wanted to see if there was something I was missing

I should also add that this board member is saying the open meeting of the HOA/BOD isn't a public meeting so it can't be recorded.

Right so that means that its open public meeting for the members as opposed to an exectuve meeting which would be closed to the members

Thanks for all the info and just just being a great sounding board - i really appreciate that

PjW,

You are correct, you may record the board meeting. As you stated, the Association may adopt rules regarding recording. As the law states, this rules can include placement and use of equipment used for recording.

Please Note: the law does not give permission to record the general membership meeting or a special meeting of the general membership.

Although VA wiretapping laws
only require 1 party approval, notice should be given that the meeting is being recorded.

If you are going to attend a meeting and plan on recording the meeting using electronic means (vs. pen and paper) you need to give notice to the board ahead of time.

Now, if someone wants to get into the nitty gritty of it, the law allows for recording of the meeting. It does not specify that you have a right to use x or y equipment to record. It implies that electronic methods would be used based on the specification that the board can adopt rules to the placement of the equipment, but it does not specify the equipment.

Therefore, it could be argued that the Board could adopt a rule saying that only pen and paper recording will be allowed and electronic methods will not be. The Board could also adopt a rule that only audio or paper/pen recording would be allowed and that the audio equipment must be placed 30 feet from the last person in the room - basically making the recording useless unless you have a really really good quality directional microphone.

IF any board chose to take one of those stands, the issue would probably have to go to court to have it ruled on.

I would suggest that you do the following:

1. Submit a statement to the Board that you will be attending the meeting on mm/dd/yyyy and, as provided for under, VA § 55-510.1 Meetings of the board of directors, you will be recording the meeting using a [video/audio recorder].

2. Ask that they please announce this fact at the beginning of the meeting.

3. Request that if they have any concerns over your authority to record the meeting to review the law you mentioned and/or seek advise from their attorney.

You might even want to provide them the following link:
http://www.reesbroome.com/associations/files/newsletters/April_2003_Va.pdf

That is a newsletter from our Associations legal firm in Northern VA that discusses the videotaping issue. It doesn't say much, just acknowledging the fact that you can record the session.

Hope this helps,

Tim

Our board in Va. initially objected when a member wanted to record the board meeting via video and then post the video on a web site to be viewed by members who could not attend. After discussion and the pointing out of the Va. statute cited above, the board agreed, provided that the on-line video be password protected, and only viewable by association members.

During subsequent meetings the video was also streamed live for viewing by those members who could not attend, again, subject to password protection.

David - the recording for us isn't going past the person who does the recording, its mearly for back up for verifying the minutes and a source for the newsletter. But that's a good idea about the streaming - not sure we're up to that level though.

Susan - you'd think but in the last meeting it just sparked a huge fight. We have a very dividing and unharmonious board at the moment. I wish it kept people more courteous and there were less chatter

"Open Meeting" requirement is when your HOA has a meeting/hearing on a subject that involves a municipal entity; like your city government's water department. Those meetings MUST be open to the general public and are often shown on cable TV.

Your HOA Board "open meetings" are open-invitation to Members only. There is no obligation to make them public. Members can attend, but are allowed to participate only as outlined in your documents. Usually, they cannot vote or make comments throughout the meeting, unless recognized by the chair or invited to speak. In that sense, yes, it is a private meeting of the board. But able to be observed by the Membership.

The taping/recordings of these HOA "open Meetings" must be safeguarded. As outlined in someone's post above, they can be shown to members, with password protected precautions.

Personally, I'm agin' the taping/videoing. I think it can stifle real discussion about issues. The minutes should reflect the business of the meeting, not the side remarks, opinions, comments, etc. At the end of the day, THAT is what is important.

When in doubt … we will check the definitions.

§ 55-509. Definitions.

"Meeting" or "meetings" means the formal gathering of the board of directors where the business of the association is discussed or transacted.

§ 55-510.1. Meetings of the board of directors.

A. All meetings of the board of directors, including any subcommittee or other committee thereof, shall be open to all members of record. The board of directors shall not use work sessions or other informal gatherings of the board of directors to circumvent the open meeting requirements of this section. Minutes of the meetings of the board of directors shall be recorded and shall be available as provided in subsection B of § 55-510.

B. Notice of the time, date and place of each meeting of the board of directors or of any subcommittee or other committee thereof shall be published where it is reasonably calculated to be available to a majority of the lot owners.

A lot owner may make a request to be notified on a continual basis of any such meetings which request shall be made at least once a year in writing and include the lot owners' name, address, zip code, and any e-mail address as appropriate. Notice of the time, date, and place shall be sent to any lot owner requesting notice (i) by first-class mail or e-mail in the case of meetings of the board of directors or (ii) by e-mail in the case of meetings of any subcommittee or other committee of the board of directors.
Notice, reasonable under the circumstances, of special or emergency meetings shall be given contemporaneously with the notice provided members of the association's board of directors or any subcommittee or other committee thereof conducting the meeting.

Unless otherwise exempt as relating to an executive session pursuant to subsection C, at least one copy of all agenda packets and materials furnished to members of an association's board of directors or subcommittee or other committee thereof for a meeting shall be made available for inspection by the membership of the association at the same time such documents are furnished to the members of the board of directors or any subcommittee or committee thereof.

Any member may record any portion of a meeting required to be open. The board of directors or subcommittee or other committee thereof conducting the meeting may adopt rules (i) governing the placement and use of equipment necessary for recording a meeting to prevent interference with the proceedings and (ii) requiring the member recording the meeting to provide notice that the meeting is being recorded.

If a meeting is conducted by telephone conference or video conference or similar electronic means, at least two members of the board of directors shall be physically present at the meeting place included in the notice. The audio equipment shall be sufficient for any member in attendance to hear what is said by any member of the board of directors participating in the meeting who is not physically present.
Voting by secret or written ballot in an open meeting shall be a violation of this chapter except for the election of officers.

C. The board of directors or any subcommittee or other committee thereof may convene in executive session to consider personnel matters; consult with legal counsel; discuss and consider contracts, pending or probable litigation and matters involving violations of the declaration or rules and regulations adopted pursuant thereto for which a member, his family members, tenants, guests or other invitees are responsible; or discuss and consider the personal liability of members to the association, upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The board of directors shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion or other action adopted, passed or agreed to in executive session shall become effective unless the board of directors or subcommittee or other committee thereof, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion or other action which shall have its substance reasonably identified in the open meeting. The requirements of this section shall not require the disclosure of information in violation of law.

D. Subject to reasonable rules adopted by the board of directors, the board of directors shall provide a designated period of time during a meeting to allow members an opportunity to comment on any matter relating to the association. During a meeting at which the agenda is limited to specific topics or at a special meeting, the board of directors may limit the comments of members to the topics listed on the meeting agenda.
(1999, c. 1029; 2000, c. 905; 2001, c. 715; 2003, c. 404; 2004, c. 333; 2005, c. 353.)

Someone can correct me if they think I am wrong … however, in my opinion with regards to this statute all meetings are open except for those noted in Subsection C above. This would include general meetings and special meetings would be considered "open". I do not see anywhere that these are exempt, in this statute. The only thing a board can do is adopt “reasonable” rules, even though reasonable is not stated here I would be willing to bet it is stated somewhere else in the statutes as it is included in most state statutes.

Those listed in Subsection C are exempt due to: “The requirements of this section shall not require the disclosure of information in violation of law.” Because of this legal issue these are “closed” meetings.

Even if we look at the other statutes regarding meetings:

§ 55-510. Access to association records; association meetings; notice.

C. Books and records kept by or on behalf of an association may be withheld from inspection and copying to the extent that they concern:
7. Meeting minutes or other confidential records of an executive session of the board of directors held in accordance with subsection C of § 55-510.1;
F. Meetings of the association shall be held in accordance with the provisions of the bylaws at least once each year after the formation of the association. The bylaws shall specify an officer or his agent who shall, at least 14 days in advance of any annual or regularly scheduled meeting, and at least seven days in advance of any other meeting, send to each member notice of the time, place, and purposes of such meeting. Notice shall be sent by United States mail to all members at the address of their respective lots unless the member has provided to such officer or his agent an address other than the address of the member's lot; or notice may be hand delivered by the officer or his agent, provided the officer or his agent certifies in writing that notice was delivered to the member. Except as provided in subdivision C 7, draft minutes of the board of directors shall be open for inspection and copying (i) within 60 days from the conclusion of the meeting to which such minutes appertain or (ii) when such minutes are distributed to board members as part of an agenda package for the next meeting of the board of directors, whichever occurs first.

These are also referencing only “meetings” and “board of directors” who will get the draft minutes and to be distributed, etc. This association meeting would then meet the definition:

"Meeting" or "meetings" means the formal gathering of the board of directors where the business of the association is discussed or transacted.

PjW,

Explain to the Board members who are quoting CA law that the Association isn't incorporated in CA and that the Development isn't in CA. The laws that must be complied with are in VA and failure to comply with those laws makes the Association open to legal action. Additionally, if the Board intentionally and knowingly refuses to comply with the law, the D&O insurance would not cover them in any legal action.

Like some of the Board members, I would also have an issue with the recording being placed on the internet. The law allows the recording to be made. The law mandates that the meeting be open to members of the Association. The internet is public and open to all. Even with password protections, there are various web crawlers and hackers that can and do break password protections.

Since you have someone who desires to have video recordings, I would suggest adopting a procedure that the Board will record all meetings of the Association and maintain those recordings for x months/years as part of the records of the Association. As a record of the Association, the membership has a right to view them or to have copies providing they sign a statement indicating that the information will not be posted on any public forum. If they refuse to sign the statement, the member may review the records in accordance with VA law.

Then ask that this one individual do the recordings for you but the secretary of the Association should maintain custody of the tape.

I would also strongly recommend that before adopting any resolution about the videotaping that you have the Association attorney review the proposed resolution and offer advise.

Tim

THanks Tim and Brian

Trust me no recordings are going on the internet. Recording was never intended for that propose ever. It was because the secertary isn't producing minutes that are very good. We'd remove him from the position but his friends on the board outnumber those who want him to step down. So the idea that the meetings be recorded be used just for backup.

They have been told we do not live in CA - I think they tried to use the DAvis Stirling act to say open board meetings are private not public.

I feel they are just trying to stir people up and act like bullies - but that's a personal opinion