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THE FATE OF BOARD MEETINGS IN A POST-COVID WORLD.

By Daniel C. Heaton, Esq.

At the outset of the Covid pandemic, community associations were thrown into conflict as boards and managers attempted to comply with state and local restrictions on public gatherings while somehow still following the Open Meeting Act. Amid all the chaos, many associations started conducting their meetings via Zoom and simply ignored the physical presence requirement of Civil Code §4090(a). This solution was not unprecedented, as governments were already following the same practice because Governor Newsom had suspended the physical presence requirement of the Brown Act.

In light of continued health risks, the California Legislature passed SB 391 in September 2021. This took effect immediately and created Civil Code §5450, which authorized meetings to be held entirely by teleconference without first designating a physical location for director or member attendance. Under §5450, the primary condition for boards to legally meet virtually is that “gathering in person is unsafe or impossible because [the HOA] is in an area affected by [a declared state of disaster or emergency].”

What started as a necessity quickly turned into a preference for many associations, as boards, managers, and homeowners realized the benefits of meeting virtually. Many associations experienced an increase in community involvement with the ease of being able to “jump on” at a moment’s notice from any location. Homeowners reported a sense of greater transparency in monitoring the actions of their community leaders. Boards realized they could more readily seek (and afford) the advice of their legal counsel, as they no longer had to pay for travel to and from meetings. It seemed that at least some good came out of such a devastating period.

But what happens when the qualifying condition that allowed these purely virtual meetings disappears? On February 28, 2023, Governor Newsom ended the Covid State of Emergency in California. In January, the Biden Administration announced that the national emergency related to the pandemic would end by May 11, 2023. As a result, associations are no longer able to rely on these declarations to authorize virtual meetings, even though many boards and managers mistakenly believe that §5450 ratified the practice. What is the fate of virtual board meetings and what can managers do to help their associations continue to experience the benefits of virtual meetings?

Get Involved

The legislative session is again in full swing. Assemblymember Valencia of District 68 introduced AB 648 to build upon earlier statutory provisions and authorize associations to conduct meetings entirely by teleconference without the need for a declared state of emergency or a designated physical location. If passed, AB 648 would authorize this practice at the discretion of the board.

Community managers are in a unique position to help educate their boards and individual homeowners about the importance of pending legislation such as AB 648. They should utilize CACM resources to track AB 648 as it proceeds through the legislative process and help encourage their homeowners to voice support with their representatives. (Visit https://cacm.org/advocacy for additional links!)

Get Creative

Civil Code §5450 has not been rendered meaningless just because the primary national and California Covid declarations have been lifted. Rather, the qualifying condition could be triggered by other proclamations. During the pandemic, multiple federal declarations were announced in addition to the President’s Proclamation 9994. The Secretary of Health and Human Services (HHS) issued a separate emergency declaration under Section 564 of the Federal Food, Drug, and Cosmetic Act. This declaration is not set to conclude in midMay but was renewed by HHS notice on March 17, 2023.

MANY ASSOCIATIONS EXPERIENCED AN INCREASE IN COMMUNITY INVOLVEMENT WITH THE EASE OF BEING ABLE TO “JUMP ON” AT A MOMENT’S NOTICE FROM ANY LOCATION.

As another example, on March 1, 2023, Governor Newsom proclaimed a state of emergency due to severe winter storms to support disaster relief in 13 counties. While courts may not find that §5450(a) applies because the storms do not necessarily make it “unsafe or impossible” for boards to hold in person meetings, there is at least a reasonable argument in support of authorizing virtual meetings.

Go Hybrid

Although purely virtual meetings might not be permitted, “hybrid” meetings could become the “new normal.” Boards may still conduct their business virtually if they comply with Civil Code §4090(a) by providing notice of at least one physical location where a director or other designated person will be present. This allows members an opportunity to attend “in person.”

Boards should consult with counsel to make sure their hybrid meetings are properly noticed and comply with the Open Meeting Act. Some governing documents contain restrictions on the physical location for meetings (e.g., “in the clubhouse” or “in the county”). However, if no such provisions exist, managers can suggest designating their own office. This would enable managers to attend multiple meetings for various clients in a single evening, or just have more family time, as they would no longer be required to travel for meetings. Some management companies have even created “Zoom rooms” with a single employee designated to “be present” for all meetings scheduled that night.

Given the availability of hybrid meetings, managers could consider charging more to attend in person since it would require travel and prevent attendance at multiple meetings. With a little advanced planning to meet the requirements of §4090, managers and their associations can utilize a hybrid model to continue to enjoy the benefits of a virtual world.

Daniel C. Heaton, Esq. is a senior associate at Nordberg | DeNichilo, LLP, serving as corporate and litigation counsel to community associations throughout Southern California.