California Condo & HOA Law

« Assessments - What is Legal? | Main | Solar Energy - What Are The Trade-Offs? What Do You Need to Know? »

July 28, 2007

Should Agendas Be Required With Meeting Notices?

SB 528 is a bill before the California legislature. It would add a requirement to HOA meeting notices to include the agenda. Some people love the idea of requiring the agendas to be provided so members can see them, before the meeting, and others hate the idea. Some love the idea that the Board cannot consider action on any items that are not on a pre-noticed agenda and others hate it. Some want more legislative regulation on owner notice issues and some think the technical, detailed and complicated regs such as those proposed below are simply made to trip volunteer board members up. You can judge for yourself. A later blog will cover some of the arguments for and against the provisions in the bill. Here are some passages in the bill:

"(f) Unless the time and place of meeting is fixed by the bylaws, or unless the bylaws provide for a longer period of notice, members shall be given notice of the time and place of a meeting as defined in subdivision (j), except for an emergency meeting, at least four days prior to the meeting. Notice shall be given by posting the notice in a prominent place or places within the common area and by mail to any owner who had requested notification of board meetings by mail, at the address requested by the owner. Notice may also be given, by mail or delivery of the notice to each unit in the development or by newsletter or similar means of communication. The notice shall contain the agenda for the meeting...."

HERE'S THE KICKER ...

"(i) (1) Except as described in paragraphs (2) to (4), inclusive, the board of directors of the association may not discuss or take action on any item at a nonemergency meeting unless the item was placed on the agenda included in the notice that was posted and distributed pursuant to subdivision (f). This subdivision does not prohibit a resident who is not a member of the board from speaking on issues not on the agenda.
(2) Notwithstanding paragraph (1), a member of the board of directors, a managing agent or other agent of the board of directors, or other agents or a member of the staff of the board of directors, may do any of the following:
(A) Briefly respond to statements made or questions posed by a person speaking at a meeting as described in subdivision (h).
(B) Ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities, whether in response to questions posed by a member of the association or based upon his or her own initiative.
(3) Notwithstanding paragraph (1), the board of directors or a member of the board of directors, subject to rules or procedures of the board of directors, may do any of the following:
(A) Provide a reference to, or provide other resources for factual information to, its managing agent or other agents or staff.
(B) Request its managing agent or other agents or staff to report back to the board of directors at a subsequent meeting concerning any matter, or take action to direct its managing agent or other agents or staff to place a matter of business on a future agenda.
(C) Direct its managing agent or other agents or staff to perform administrative tasks that are necessary to carry out this subdivision.
(4) (A) Notwithstanding paragraph (1), the board of directors may take action on any item of business not appearing on the agenda posted and distributed pursuant to subdivision (f) under any of the following conditions:
(i) Upon a determination made by a majority of the board of directors present at the meeting that an emergency situation exists. An emergency situation exists if there are circumstances that could not have been reasonably foreseen by the board, that require immediate attention and possible action by the board, and that, of necessity, make it impracticable to provide notice.
(ii) Upon a determination made by the board by a vote of two-thirds of the members present at the meeting, or, if less than two-thirds of total membership of the board is present at the meeting, by a unanimous vote of the members present, that there is a need to take immediate action and that the need for action came to the attention of the board after the agenda was posted and distributed pursuant to subdivision (f).
(iii) The item appeared on an agenda that was posted and distributed pursuant to subdivision (f) for a prior meeting of the board of directors that occurred not more than 30 calendar days before the date that action is taken on the item and, at the prior meeting, action on the item was continued to the meeting at which the action is taken.
(B) Before discussing any item pursuant to this paragraph, the board of directors shall openly identify the item to the members in attendance at the meeting. "

_______________________________________

So what does all this complicated mumbo jumbo mean? [IF THE BILL IS SIGNED INTO LAW]

1. Boards have to think ahead and plan agendas for board meetings open to the members and have them ready to post with meeting notices. (Hint: if you provide notice of the meeting through the bylaws or a newsletter, just make sure the agenda goes out with a followup notice of the meeting mailed to members or posted in a prominent area of the common area.

2. Boards may not "discuss or take action on any item at a nonemergency meeting" that is not on the agenda. However, there are provisions allowing those at the meeting to override this limitation for an emergency matter; and

3. It seems to me that this would not prevent boards from acting on and discussing emergency items at a legally called emergency meeting (and note that owner notice is not required under the Davis Stirling Act for emergency meetings, but they are defined and regulated by statutes in it).

4. The bill would not prevent discussion on items raised by owners to the extent that questions deserve answers (what you have to be most careful about is taking board action on something that was not on an agenda, unless it fits the "emergency" exception).

5. Boards will definitely have to PAY ATTENTION if this bill passes, think and plan ahead, and be prepared as failure to follow through, IF IT IS PASSED, might have some bearing on whether the action was considered to be legal or not.

Posted by Beth Grimm at July 28, 2007 8:41 PM