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August 1, 2007
What If A Pre-Meeting Agenda Is Required But There is No Place to Post?
You may have read the earlier post about a bill in California that is pending that would require Boards to circulate an agenda before each board meeting so that members could see what matters were to be discussed. The bill would also prevent Boards from discussing or taking action on items that were not on this agenda. Of course, this could make life even more difficult for Boards and more expensive for homeowners in associations in California. What else is new, really.
There are exceptions to the rule in the bill (those present can override the requirement on subject matter that is an emergency and needs action), but one would not want to rely on that. If the bill becomes law, which is likely, the disclosure may be difficult for associations that do not have any common area place to "post". The law would require (as to notice):
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...."
So the question arises - what if there is no common area? Here is a specific note from a reader:
"I see you have discussed the new (pending) law in the blog, but I see no guidance about where such an association as ours (862 separate homes, with no commons buildings, no central bulletin board, etc) would be expected to post."
Does the Board have to send a mailing to each owner? Of course, this could get quite onerous and quite expensive if before each monthly board meeting a mailing had to be arranged. So what are the options?
**If there is an entry gate or this is a gated community, then crafting an aesthetically pleasing frame or box and posting it on the entry kiosk or area is an idea.
**If there is any set of kiosks for mail delivery, this is an option.
**Are billing statements mailed to owners each month or quarter? If adjustments can be made to mail billing statements out so they reach owners at least 4 days before the meeting, the notices and agenda could be sent with the billing statements.
**It is possible that "...or by newsletter or similar means of communication..." could mean posting on the association website (assuming there is one).
So long as you would allow owners to ask for mail delivery of the agenda if they do not have internet service, this would seem reasonable to post the agenda on the website, especially in a community where there is no place else to post the agenda.
If this bill passes and any member challenges the method chosen by the Board to provide notice to the owners, that member will probably have the burden to show that the method used was not a reasonable means of notice. Obviously, it is easier to pre-schedule the meeting dates and times than it is to pre-schedule the agendas as putting the agenda together for each meeting generally occurs shortly before the meeting. If this bill passes, it will definitely present challenges for Boards. Everyone will have to move up the timing for agenda preparation rather than waiting until the last minute. And an item that comes up after the agenda is put together will have to be treated as an emergency matter and handled either by the statutory exception in the proposed bill at the open meeting or, possibly (don't take my word for it - consult your own attorney), via an emergency board meeting as authorized by Civil Code Section 1363.05.
Unforetunately, as with every difficult bill that offers more to the individual owners, the job of the Board gets more and more difficult and the costs of the association increase. There is a trade off for almost every piece of legislation that is passed so no legislation should be considered lightly. Every board in California has the option of contacting their local legislator and discussing these difficulties, but like every other aspect of HOAs, apathy reigns and the legislators probably will not hear from many individual boards or board members on this issue. So who's to blame?
Posted by Beth Grimm at August 1, 2007 9:57 PM