Board Actions without meeting in Virginia

Similar situation in Florida. The general not-for-profit corporation statute (FS 617) permits boards to take actions without a meeting. The condo and HOA statutes, however, supercede FS 617 and define what constitutes a board meeting and that board meetings must be properly noticed and open to all owners. Although not spelled out in so many words, it's generally accepted in Florida that an Action Without Meeting constitutes the conduct of association business without meeting any of the requirements for a "board meeting".

It is an interesting question. Hopefully Virginia will iron out the details with a bit more clarity than Florida did. To my knowledge, in spite of the consensus of Florida's legal community and Property Mangement industry, there have been no court cases or arbitration rulings that have ruled specifically on the issue.

I read the Ombudsman's decision you provided. I see the author of the decision is an attorney. She wrote, "actions without meetings do not constitute a meeting... " The Virginia Property Owners Association Act at 55-510.1 states, inter alia, "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." It seems to me that state statutes would trump the Bylaws. I think a court would say that the HOA violated this statute. At present, I find the decision legally inadequate.

Virginia is lucky to have sunshine laws for HOA meetings, decision-making, and so on. It is too bad that this state Ombudsman's office seems disinterested in transparency as apparently required by the HOA statutes in Virginia. I wonder how often this office has been overturned in court in recent years.

Below is a section from one association's Bylaws. California banned AWM a couple of years ago for the reason outlined in bold. Associations were running amok, holding email or telephone "meetings", but never following up with informing the members present at the next open meeting what had been done. In California, a meeting is defined as being at the same place and time. These AWM are done via email, which isn't at the same time and place. Furthermore, Board meetings are defined by the Davis-Stirling Act as a gathering of a majority of directors at the same time and place to "hear, discuss, or deliberate upon any item of business that is within the authority of the board. "Item of business" means any action within the authority of the board, except those actions the board has validly delegated to any other person or persons, managing agent, officer of the association, or committee of the board comprising less than a majority of the directors. Action is taking a vote or making something happen, discussions are not actions.

Then you run into the problem where all Board members live off site in a small community and technically meet once a quarter.

Section 6.17 Action Without Meeting. Any action by the Board of Directors may be taken without
a meeting if all members of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the proceedings of the
Board and shall have the same force and effect as a unanimous vote of such directors. Any action so
taken by the Board shall be posted in a prominent place within the Common Area within three (3)
days after all of the written consents have been obtained. If the Common Area consists only of an
easement or is otherwise unsuitable for posting the explanation of the action taken, the governing
body shall communicate said explanation by any means it deems appropriate.

Richard, we had this discussion before.

CA still allows AWMs, but only under limited circumstances (by defining an emergency) and they are now called emergency meetings. The result is the same, an action without a meeting.

Jeff, that's a good point about urgent and emergency situations. The Virginia HOA statute says this on the subject: "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."

I presume good judgment is also expected. E.g. a water line breaks. Life and property are clearly at grave risk given the nature of the break. Does the HOA need formal documentation that it voted for the repair to proceed? I say a court would say no. Documenting afterwards would be required.

Tim noted: "I'm curious what the legislatures will make of this and if they will take action or not."

As you Tim noted the State Statues conflict ... therefore, one would hope that the Legislators properly address. I would contend that most likely they will eventually address.

the office of the common interest community ombudsman cannot read association documents or handle internal matters even if they are mentioned in the poa act, nor handle not for profit statutes. new laws should be enacted to permit them to handle anything which is contained in the poa act. the largest complaint received regards board behavior. I have contact my state delegate to request hoa reform in Virginia due to the current helplessness of owners. boards need to be able to perform their duties, however owners need to be protected from abuse.
thank goodness that my current board has a new president who really wants to do things "right" and is very responsive to home owners.

Any update on this for Virginia HOAs? Our Board and every single committee makes practically all decisions outside of open meetings. In fact, the committees haven't openly met in years, but are given tens of thousands of dollars every year and then secretly decide how that money will be spent.

Requests for Unanimous Written Consents are routinely ignored.

On the rare occasions our Board meets there is never anything posted on an agenda. Our association functions as secretly as possible, and in my humble opinion, deliberately abuses the AWM corporate statute to circumvent the open meeting requirement.

Getting involved doesn't fix this Tim. Any homeowner can be blocked from participating when everything is done through email or in secret meetings.

Getting involved can fix this.

The fact that things are going on with AWMs, combined with the fact that the AWMs are not documented (as this is what I am getting from your postings) in the next open meeting minutes (with proof of unanimous consent), is enough to gather others together. You may need to educate others. It is not a quick fix, it takes time and energy (took me three years in my last association) but it does work.

You can also file a complaint with the ombudsman about the failure to properly document the AWMs and that the AWMs, in your opinion, are being used in place of open meetings.

I would agree that if the board doesn't have documentation of unanimous consent, there is nothing to show.

That would be the argument of violating the statute.

If you can't get support to make changes, you may need to consider other options:

1) live with it.
2) Move (I know, easier said than done)
3) consider legal options (again, easier said than done - as it can be a ton of money, energy and splitting of community).

If you can get the support (and you were able to do it once) you can slowly make changes.

This is the reality of it all.