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October 4, 2005
BOARD MEETINGS - WHO SETS THE BOUNDS OF CONDUCT?
It's happened again. The people who write the LA Times "Condo Q and A Column" have presented quite a biased (and in my opinion, and that of other legal practitioners in this state, inappropriate) view of what Owners can do at homeowner association board meetings by claiming that Owners should turn on their tape recorders!
These are not public meetings! The Brown Act does not apply. The Davis Stirling Act sets the boundaries of what homeowners can do at these meetings and it specifies that owners shall have the opportunity to address the board, but the Board may set reasonable rules regulating the homeowner forum process. (Civil Code Section 1363.05 - see below.) It does not say that homeowners have the right to tape meetings or that boards must allow taping. And secretly taping people without their knowledge in a homeowners association meeting is against the law.
Now the Board, on the other hand, has the authority to plan the meetings, choose the time, place and Agenda, and set meeting decorum. If the Board sees value in taping the meeting - it can do so, assuming it will announce that it is taping the meeting at the beginning of it. However, allowing the taping of meetings creates all kinds of potential problems (as discussed in an earlier blog) and I do not recommend it, except in rare cases where a board needs to find a method of preventing childish and disruptive outbreaks at its meetings - sometimes video-taping has that effect.
And taping is not the only matter the Board can control.
In any uncomfortable situation where the Board might not know how to react, having a policy in place (like a road map) is important. I think many Boards need help at board meetings. Board meetings are supposed to be a time when the board can conduct business, without disruption from the attending owners. The "homeowner forum" is supposed to be a time when Owners can bring their complaints to the Board members face-to-face," but it was not intended to be a time when the members can corral the discussions on the business before the Board and disrupt the Board's decision-making process.
Since January of 1999 many associations have become aware that they must provide for a “homeowner forum” time at any meeting, to allow the homeowners to address the board. In theory, the idea was that the homeowners would have a chance to speak to the board directly about their concerns. In practice, however, abusive tactics have been the experience of many boards. The statute, Civil Code Section 1363.05(i), says that boards of directors must allow homeowners to speak at meetings, but are entitled to set reasonable limitations on time. This word “time” can mean at a particular time during the meeting (before, during, or at the end of), and/or can relate particularly to the amount of time a person is given to address the board. The practice in many associations is to set aside 1/2-1 hour of time at the beginning or end of the meeting, and allow the homeowners who wish to address the board an opportunity, usually giving them somewhere around 5 minutes each (sometimes more). The time given to homeowners to speak should be consistent, meaning that it would seem unfair to one homeowner if they were only allowed to speak 3 minutes and someone else is allowed to speak for 10 minutes. I have seen situations, especially at annual meetings, where homeowners sign up to speak and then want to “give their time” to another homeowner so that that person will have more time to speak. I am not in favor of that practice, but if a board wanted to allow it, its the board's choice. These limitations are purely dependent on what the Board thinks is best for the community (and for it - to be able to get through the business before midnight!).
In order to get any control over meetings, a meetings policy followed consistently can be a great help. If this policy is handed out at all association meetings people will become used to it and, hopefully, comply. Before the policy is approved by the Board, it needs to be circulated to all of the homeowners so that they will have the opportunity to comment on it.
"No taping of meetings is allowed" should be on the list of inappropruiate conduct. The reasons could be given in support of it such as: "We believe taping of meetings creates problems such as discouraging members to speak during the forum time, misuse or possible manipulation of the tapes, confusion as to what constitutes the official record of the meeting, and hard feelings."
The Board could, in addition to the policy handout, at the beginning of every meeting, announce the existence and purpose of the policy. The truth is that people have a much harder time arguing with a piece of paper than a real live authority person.
In order to adopt a meeting policy, a Board will need authority in the governing documents to set rules and regulations. Most Bylaws have it in some form. If the Board wants to consider disciplinary action for failure to honor the policy, which might include suspension of membership rights, fines, monetary penalties, or charges for attorney’s fees (if necessary), the authority would have to come from the association documents or the law, either generally or specifically. Associations definitely need the advice of a knowledgeable attorney to determine the extent of authority to discipline an owner.
Are your meetings a disaster? If so, think about a meetings policy. And also, as a parting thought, be careful where you get your information - see my earlier blog about considering the source. In my humble opinion, the LA Times used to have a much more trusted and balanced authority figure answering questions of the readers in Jan Hickenbottom (author of "Questions and Answers" - found on Amazon.com). Since she was replaced, I have great difficulty reading the column.
Posted by Beth Grimm at October 4, 2005 12:52 PM