Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #84 • January 2012
Step Away From that Computer!
Before you send another Email, Read How New Legislation Restricts Board Procedure, Executive Sessions, Emergency Meetings, Discussions and Decisions
by Melissa Bauman Ward, Esq. and Sandra M. Bonato, Esq.
Effective January 1, 2012, amendments to the Common Interest Development Open Meeting Act (Civil Code §1363.05) clarify several key aspects of board meeting processes and decision-making. Among the clarifications: the law establishes that executive sessions are board “meetings” that require posted notice and agendas. However, the notice for executive sessions (two days) will be only half of the notice required for open meetings (four days). Conference call protocols (which are likely to become more commonly used) are now specified in statute. Finally, board discussions and decision-making by email are expressly prohibited unless necessary to address emergencies and, even in that case, only with unanimous consent to the emergency email decision by all directors.
While some express dismay at being forced away from their computer screens and smart phones and daily, if not hourly, involvement by email in association affairs, the new legislation also may permit paving the way for greater efficiency and organization in conducting business, increased interest in attending well-agendized, transparent meetings, and an appropriate adjustment of member and director expectations of themselves and each other. Further, the new amendments to the CID Open Meeting Act encourage better handling of confidential items of business and diffuse some of the intense disputes surrounding currently debatable aspects of open and executive session meeting procedures. And so, while in some aspects the new amendments might be perceived to be a burden – especially by boards who meet quarterly or who actively use email to conduct association business between meetings – it also creates opportunities that can facilitate better operations.
What is a “meeting”?
Under the CID Open Meeting Act, decisions of the board are generally required to be made at a “meeting,” thus making that term essential to understand. The CID Open Meeting Act is the community association version of the Ralph M. Brown Act, the body of law in California that requires open meetings for local government agencies (such as cities, counties and special districts.). Like the Brown Act, the purpose of the CID Open Meeting Act is to promote transparency in decision-making by association boards of directors and committees comprised of a majority of directors. The point of the law is to ensure that members of an association have the opportunity to hear their board debate the pros and cons of proposed actions, to watch the decision-making, and to understand and appreciate the reasoning that goes into it.
While the CID Open Meeting Act has always contained a definition of a “meeting,” the amendments provide much needed clarification of several common situations. SB 563, the bill that was enacted, amends the definition of a meeting to mean either a face-to-face gathering of or a conference call among a majority of directors. It is now clarified that a “meeting” includes both open and executive session gatherings of the board. Specifically, section 1363.05(k) provides that a meeting is now either:
(1) A congregation of a majority of members of the board at the same time and place to hear, discuss, or deliberate upon any item of business that is within the authority of the board
(2) A teleconference in which a majority of the members of the board, in different locations, are connected by electronic means, through audio or video or both. A teleconference meeting shall be conducted in a manner that protects the rights of members of the association and otherwise complies with the requirements of this title. Except for a meeting that will be held solely in executive session, the notice of the teleconference meeting shall identify at least one physical location so that members of the association may attend and at least one member of the board of directors shall be present at that location. Participation by board members in a teleconference meeting constitutes presence at that meeting as long as all board members participating in the meeting are able to hear one another and members of the association speaking on matters before the board.
Pursuant to the amended statute, meetings in a traditional sense (e.g., a majority of board members gathering in-person to discuss and decide upon agendized items) are not changed. However, the formal definition and rules concerning board meetings are expanded to include conference call meetings of the type that are being used more and more frequently.

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