A Refresher on the Open Meeting Act

By Stephen M. Levine, Esq.

The Davis-Stirling Act, Civil Code §4900, known as the “Open Meeting Act” provides rules for board meetings. The public policy behind the Open Meeting Act is to ensure transparency and keep board members accountable.

The Open Meeting Act ensures that homeowners are apprised of association matters by providing homeowners with the right to attend all board meetings (except executive session meetings), advance notice of such meetings, and access to meeting minutes.

The Open Meeting Act provides certain guidelines, such as boards are prohibited from acting on “any item of business” outside a board meeting (Civil Code §4910(a)), with one exception discussed below.

What is an “item of business?” It means any action within the board’s authority, except those actions the board has validly delegated to any other person or persons, managing agent, association officer, or board committee (Civil Code §4155).

WHAT IS A BOARD MEETING?

A “board meeting” is defined in Civil Code §4090, as: (a) a “congregation” at the “same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board”; or (b) a “teleconference,” where a “sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both.”

If the meeting is via teleconference, the meeting notice must identify at least one physical location where homeowners may attend and at least one director or a person designated by the board must be present (Civil Code §4090(b)). However, because of the COVID-19 pandemic, the legislature enacted Civil Code §5450 which provides an exception for the physical location designation.

Section 5450 applies if gathering in person is unsafe or impossible because of a local, state, or federal state of emergency, and permits associations and boards to meet by teleconference, without designating a physical location, during such times. It does require that certain other requirements are met and an association should review the text of the statute before determining to hold a meeting under Section 5450.

TYPES OF MEETINGS

OPEN BOARD MEETING

Typically, regular board meetings are set by the board, unless the bylaws set a specific frequency of regular meetings. Generally, regular board meetings are held monthly. To hold a properly noticed board meeting, the board must give the membership notice at least four days before the meeting (Civil Code §4920(a)).

If the governing documents require a longer notice period, it must be complied with. The meeting notice must contain an agenda and the date, time, and place of the meeting must be provided by general delivery (Civil Code §4920(c)-(d)). The board may not discuss (except for limited exceptions set forth in Civil Code §4930) or take action on any item at a nonemergency meeting unless the item was placed on the agenda.

Open board meetings are open to homeowners to attend and observe and must allow for a homeowner forum (sometimes referred to as “open forum”) where owners can voice concerns, opinions and ask questions (Civil Code §4925).

Boards can set a reasonable time limit for homeowners to speak at the meeting’s beginning or end. However, the board is not required to answer questions posed in an open forum; in fact, they may not discuss questions or issues that have not been noticed on the agenda for the meeting

EXECUTIVE SESSION BOARD MEETINGS

Executive session board meetings are closed to homeowners. The following matters are those which may be discussed or acted upon by the board in executive session:

(a) legal matters involving pending or potential litigation;

(b) formation of contracts (bids) with third parties (although the Civil Code does not address the board voting and executing contracts in executive session, doing so is allowed. However, for transparency, many associations vote on contracts in open board meetings because executed contracts may be requested by homeowners);

(c) member discipline; and

(d) personnel matters (Civil Code §4935).

The following matters are those which must be discussed or acted upon by the board in executive session:

(a) member discipline upon homeowner’s request and must allow the homeowner to attend the meeting;

(b) payment plans;

(c) lien foreclosure; and

(d) disability requests.

To hold a properly noticed executive session meeting, notice to the membership must be provided at least two days before the meeting (Civil Code §4920(b)(2)). Due to the confidential nature of executive session meetings, the agenda should be general in nature (Civil Code §4920(c)-(d)).

EMERGENCY BOARD MEETINGS

A board can hold an emergency meeting if circumstances arise which could not have been reasonably foreseen, and which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice to the membership.

An emergency board meeting may be called by the president or by any other two board members (Civil Code §4923). An emergency meeting may be held via email (see below) or telephone/video conference (Civil Code §4090(b)). No notice is required to the membership for an emergency meeting, assuming all the above requirements are met (Civil Code §4920(b)(1)).

SPECIAL MEETINGS

Special meetings of the members can be called by the board or by the membership, if at least 5% of the members sign a petition to hold a special meeting. Notice requirements for a special meeting depend on whether they were called by the board or the membership.

EMAIL MEETINGS

Boards cannot conduct a meeting or make a decision via e-mail, except for an emergency meeting, so long as all the directors on the board consent in writing to conducting such a meeting via electronic transmission (Civil Code § 4910(b)).

The written consents are filed with the next board meeting minutes. These written consents may be transmitted electronically. Non-business and administrative emails such as setting dates for meetings, and requesting agenda items, do not classify as conducting a meeting and therefore are permitted. Unanimous written consents cannot be used for actions without a meeting unless it is an emergency.

Stephen M. Levine, Esq.

Stephen M. Levine, Esq., is an attorney with The Judge Law Firm who specializes in community association and real estate law and has 23 years of experience in the industry.