FEATURE
Communicating About COVID-19 Christina Baine DeJardin, Esq.
T
o say that the last few months have been challenging is an understatement. We have learned to video conference using several different platforms, learned to take phone calls with kids yelling and dogs barking in the background, learned to wear face masks and socially distance, and much more. Our ability to adapt to changing circumstances is amazing. However, our ability to exercise patience and tolerance in the face of adversity can sometimes lag behind. Understandably, frustration levels have ramped up over the last few months. People want to get back to living their lives on their own terms. Unfortunately, we’re not there yet. Governor Newsom announced on June 18, 2020, that masks would have to be worn inside any indoor public space and in outdoor public spaces where social distancing is not feasible. We are also seeing surging cases of COVID-19 in Riverside County and surrounding Counties. Hopefully, this will not derail our path to Stage 4 of the governor’s resilience roadmap. Associations, in particular, have been hit hard by COVID-19 on a number of fronts. Like hotels, motels, and country clubs, Associations had to close down recreational facilities in order to comply with State and local orders. Unlike hotels, motels, and country clubs, Associations have had to deal with angry Owners demanding access to the facilities that they pay for each month and have a non-exclusive right to use under the CC&Rs. Add to this the gray area that has been created by conflicting directives from State, County and City governments, and rational dialog becomes nearly impossible. Until June 12, 2020, the State and County differed on whether pools could be re-opened. The State took the position that pools could not be re-opened while the County took the opposite view and released guidelines for doing so. Seeing only the County guidelines, Owners demanded that Associations
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immediately re-open the pools. This made it very difficult for Boards to explain to their Owners that the State prohibition preempted the County’s guidance and that they could still not re-open pools. Effective June 12, 2020, the State began permitting pool openings in “variance” Counties subject to the County health officer’s approval and the implementation of the written State guidance. However, this is not where the story ends. Associations cannot simply fling the gates open and hope for the best. The State, County, and Centers for Disease Control and Prevention (“CDC”) have provided guidance for re-opening community facilities, including pools. [Links to these resources are provided at the end of this article.] Boards must carefully review the guidance issued by these entities as they arguably establish the standard of care at this time. Boards must then perform a cost-benefit analysis to determine whether the cost of implementing the guidance and the potential for liability exposure outweigh the benefit of re-opening on a stricter, more limited basis. Sending out a vote, poll, or survey to the Owners will not get the Board off the hook. As the entity charged with controlling, managing and operating the Common Area recreational facilities, only the Board can make this is decision. This also makes sense since Board members are fiduciaries and must make decisions in the best interests of the community as a whole. It is important that the Board employ the Business Judgment Rule (“BJR”) when performing this cost-benefit analysis. Under California Corporations Code Section 7231, Directors will not be personally liable based on any alleged failure to discharge their obligations as long as their decision is made in good faith, in a manner in which they believe to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person would use in similar circumstances. The reasonable inquiry prong
