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October 26, 2007
Agendas - How Important Are They? What Role Do They Play in Meetings?
California legislators are micromanaging HOAs again. A new law takes effect January 1, 2008, that requires HOA boards to distribute agendas with meeting notices. The catch, the Boards cannot conduct business on any item not on the agenda, except for the exceptions. Here's the short scoop. The longer "scoop" with more questions and answers and ramifications is in an article on my website at www.californiacondoguru.com.
What's the short scoop?
To be specific, first of all, it applies to board meetings, not membership meetings. The requirement for distributing the agenda is tacked on to the meeting notice requirements found in Civil Code Section 1365.05(f).
Question: What if the notice of meetings is in the Bylaws or Association newsletter and that comes out before the agenda is set? Answer: Find a way to distribute or post the agenda at least 4 days before the meeting. That might be with the billing statements when they are mailed, in the newsletter if the timing works, or by posting in the common area. It would be a good idea to include another copy of the notice with it, even if it was already distributed. It may not be necessary, but it makes sense.
Question: What if the HOA does not have any common area to post in? Answer: That is a little more difficult. You can mail the agenda, post it by the mailboxes if there are any clusters, put a kiosk up somewhere near a street if there are private streets, a parking area if there is any, on a street lamp, or anywhere there is space available, that you can get permission. Choose the place all owners are most likely to drive by. If you still cannot find a posting place, but you have a website, posting on the website. Use good faith to try and find a reasonable way to get the agenda before the members.
Question: What are the exceptions? Answer:
The law applies to “nonemergency” meetings only.
The law does not prevent the Board or its staff or agents from talking to the members about something not on the agenda. It is not muzzled by this law.
The law allows Boards to communicate instructions to its management and staff.
The new law allows for taking action on items that come up before/at the meeting that are not on the agenda if certain findings are made as follows (choose from any one of the following)::
(1) A majority of the board members present at the meeting determine that an emergency situation exists.
(2) Two-thirds of the members present at the meeting, or, if fewer than two-thirds of the board members are present, by unanimous consent of the members present, determine there is a need to take immediate action.
(3) The item was on an agenda for a prior board meeting (within a month prior) and did not get put on the agenda for the meeting when it comes up again.
If these exceptions do not work, consider whether it might be more practical to call an emergency board meeting, even if to take place just before the scheduled board meeting or after, to address matters that come up before the meeting but are not on the agenda. Check my website for more information as time goes on. There may be a debate over what (2) actually means.
The statute says:
"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)."
It appears to me that the legislation was written incorrectly and that the #2 was meant to refer to members present that are not actually board members (however, for all practical purposes, the directors are also "members". The first reference to 2/3 of the members, and then the reference to 2/3 of the membership of the board, is confusing, and it is quite difficult to analyze why the reference to (note bolded words) "membership of the board" is even in there. I will be writing to the legislator who wrote the bill for an analysis of what this means, and wonder if that will lead to "clean-up" legislation.
There are many other questions that have arisen and they are answered on the most recent article posted to my website at http://www.californiacondoguru.com/hoarticles/articles.html. Look for “Articles” or “What’s new?”
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Posted by Beth Grimm at October 26, 2007 11:06 PM