Tape recorders at Board meetings

CAN (able) voice recorders be used to record minutes of an HOA meeting? Yes, as long as no one stops this action.
May (permission) they be used? Yes, with approval of the Board.
Should the Board allow voice recoring? IMO no.

Should voice recording be used to assist in creating the minutes? IMO no.
But when it is done, I suggest a policy of immediately erasing the recording after the minutes are approved.
Why? Available voice recordings may be used against the Board in court.

Good for VA!
Here I have to respectfully disagree with Roger. It shouldn't bother a savvy board simply because they know they shouldn't ever say or do things that can be used against them in court. A tape recorder might help other boards avoid doing so. In addition it should make their work easier since most members would probably be on better behavior if they knew a machine was recording everything they said. Harold

Gees, guys, Tape is a figure of speech. Who uses Tape anymore. There are small electronic recorders (some with wireless remote mics) which are the size of a cigarette lighter and they will record good quality sound for up to 18 hrs. Students use them in lecture halls. Most of these can convert to WAV or MP3 files so that you can transfer and store the audio, but the file sizes are huge. The VA law says that a member may record the meeting, but I really disagree with posting the audio file on the HOA website. Not only is that difficult to due since the sheer size of the file is huge (even on reduced quality); but I think that sometimes meanings change or things are mistakinly taken out of context when you have only audio and no video. You really need to see the expression on the speakers voice when you listen to the audio.

Jaded,

Yes, there are two parts to taping. The original question was really about the board taping for the purposes of minutes. As far as members taping, Virginia does specifically allow that.

I believe that the tapes (or computer files thereof for the more modern) are covered under the open books section of the VA POAA. Of course it would be awfully easy for the association to just say they delete them as soon as the minutes are written, and the people would not be entitled to them.

As most meetings do contain discussions that don't make the minutes (even though strictly run meetings might not), they could be more interesting than the minutes. Thus homeowners might prefer listening to the recordings and by the same token lawyers might fear it (ex."safety" issue brought up, board decides against it, someone gets hurt in some manner that would have been taken care of if the association had acted on initial suggestion). I don't really think that recordings are open to that much misinterpretation that a video would reduce the effect -- my goodness, radio is still somewhat viable and used to be a tremendous source of information. Maybe people need to learn to listen again!

Jaded,

All that I was saying is that if the association does in fact tape the meeting than under the Virginia POAA act, section 55-510, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-510
it would have to be made available to a member who requested it. I am not sure I see how that makes it akin to a social club at all, or the implication that I think it is, is rather bizarre. If the association itself tapes the meeting, then presumably they would tape all of it (ours taped the annual meeting this year actually)not just the things you want taped. If they did the minutes and kept the tape then that would be subject to inspection by the membership, that is the law. (What most attorneys say about the POAA is if in doubt, disclose.)

Then I raised the issue of how open that tape should be. Why not put it on the website? I wouldn't have minded any of the meetings that I ran to be put up there. That doesn't mean I think it is a social club, it means I believe that sometimes interested people can not make it to board meetings and the association should be transparent in what they do. As far as saving things for posterity, perhaps when you have been active in the association for many years you will see that there is a point in doing that also. The same issues come around and around with monotonous regularity. More interest should be shown in keeping the history of the association, IMO. If nothing else it can save future boards' time.

I have been secretary of our association myself and frankly the thought of listening to a tape of board meetings strikes me as deadly. I lived through it once, what kind of cruel and unusual punishment would it be to do it twice? I always typed up the minutes the night of the board meeting in case I couldn't read my notes. I can see, however, how a tape could help a secretary, particularly if they could not get to doing the minutes immediately. I think it does bring up issues of disclosure, and if you delete the tape and then there is a question you can't really say "that is what was on the tape, trust me". Well, you can say anything I suppose, but a cynic might wonder why you didn't keep it then.

In CA, there is no law prohibiting the recording of Board meetings. If the membership wants to prohibit recording, amending the by-laws is necessary. (Can't record executive sessiion, obviously.) Frequently the 'official' minutes do not match what actually occurred. I'd like to record the next meeting, since a hand injury prevents my from writing, but I can guarantee the BOD and MC will object and there will be one heck of a fight. What are they trying to hide? If everything is on the up-and-up, why would a BOD and MC object?
Jane

Question... why is the first implication for not recording a meeting = "trying to hide something..?"

How many meetings in you personal, professional live's have been recorded? Was your meeting with your doctor recorded? How about your promotion/firing/lay-off meeting with HR? How about your loan application with the bank, was that recorded? Was the last staff meeting of your company, recorded? Pray tell, was your family reunion meeting recorded?

Jane, the official minute never match everything that occurs at a meeting, nor should they. What motion was not recorded correctly? Or what other item which should be recorded wasn't recorded correctly?

BTW, the MC has no say in voice or video recording a Board meeting; only the controlling documents, statutes, or the Board (which is usually the situation).

Roger,
I disagree with you. Why bother to even have minutes? They SHOULD match, at least major items, such as a vote. A vote noted in our ‘official’ minutes did not occur. Details regarding a discussion of what color roses should be planted would make the minutes long. Discussions of bids, finances, and DECISIONS, VOTES and who voted how should be there. Why should they not match, is the BOD free to put anything in the minutes they want? Be it truth or fiction?

“BTW, the MC has no say in voice or video recording a Board meeting; only the controlling documents, statutes, or the Board (which is usually the situation).”

Federal, State and local law overrides all the governing documents, the Board and the MC. The Directors are the MC’s puppets. BTW, our documents do not prohibit recording meetings.
Jane

Jaded, I don't know what is wrong with you as I always considered you reasonable before. I do not believe that anything in the POAA REQUIRES (your emphasis) the HOA to tape their meetings. I hope that no one reading these posts thinks that, and if someone is just scanning the posts your stating that is my opinion convinces them that is my opinion. I know for a fact that the POAA does not require taping of the minutes and when I was president most of the secretaries did not tape them. I also said when I was secretary I did not tape them. Do you think that I knowingly disobeyed the law as I understood it?

Are you from Virginia? Have you had attorneys advise you about what should be given to the homeowners if you are on the board in Virginia -- and they told you it was only financial records, etc.? Have you attended seminars on the POAA? I already gave the reference to what is required and know what has been told to me by attorneys who practice community law in Virginia.

I actually stopped reading your post as you are arguing about something I never said and if you are going to twist words that badly it is better to just drop the subject.

Many board members seem to be very sensitive to any kind of documentation regarding their actions. If the board members are doing everything right, what is there to hide? As others have written, transparency is essential to good governance. There are numerous posts about board meetings not being open to members, about closed (executive) sessions being abused, and unwillingness of board members to listen to members' concerns. With regard to all of these issues, the standard is that information can be withheld only if there would be material harm to the owners association. My reading is that the Virginia POA law incorporates this standard.

The same "closed" mindset carries into the meeting minutes. Many attorneys advise boards to keep the content in the minutes to a bare minimum. Lack of substance with regard to the reasons for the actions taken can create legal problems for the board and individual members who then have no documentation or record of having properly exercised their fiduciary duties. For a different view, see the paper "Fiduciary Responsibility of Association Directors: Practical Application of Legal Theory" by Jeffrey A. Barnett, Esq. at
http://www.hoa-law.com/publications/fiduciary-responsibility-of-association-directors.html. Mr. Barnett's paper is consistent with the concepts in the Open Meetings and Freedom of Information Acts which have been public policy for 40 years or more.

Where the board minutes are used to communicate to members, the added explanations are essential.

Don, thanks for the link: http://www.hoa-law.com/publications/fiduciary-responsibility-of-association-directors.html. I found it to be an excellent article and totally agree with the author.

I am for open meetings and freedom of information. With regard to the minutes, voice/ video recording at a private meeting, and other matters related to the conduct of meetings, I support using the policies and procedures established by the corporation. I think the purpose of minutes is to provide a record of a business meeting. If additional information is needed to effectively communicate with the members, I think it is appropriate to provide this in a newsletter.

With regard to voice or video recording I have observed this distracts from focussing on the objectives and therefore am opposed to it. An example was the O.J. Simpson trial; the court room was turned into a circus. Albeit lots of TV viewers found it interesting, including me. Then there is the legal reason which Jaded already stated. That is another reason for the comments in my previous post.

I have no knowledge of the law and would be curious to hear other thoughts on this, I think Jade is the only one so far to make a point on this. IF the HOA decides to tape a meeting, does that now become part of the official documentation of HOA business? That is the million dollar question because if it does then the owners would be entitled to a copy of it if they requested.

Again I don't know, am not expert, but in my opinion if the HOA is taping it, then I think the owners should be entitled to a copy if they request under the premise that all HOA records and documents are open and I would consider this part of that. If an owner decided to tape it then that is completely different.

Any expert opinions?

Brad, I agree with you for the most part. I also see the attorney's view on this. It's like some of our employers don't want you to save your old email in the event that they ever get sued for some odd reason.(Paranoid!)

Actually our secretary records the meeting just so that she can validate or check her minutes and in reality, I don't think that anyone even pays any attention to the fact that it's being recorded. Nobody even notices the recorder. Her personal electronic recorder is about the size of a small bic cigarette lighter. She does this for herself and not the board or community per se. After she creates the meeting minutes (the next day) she purges the file. These electronic files can be huge in size and cumbersome to provide to members.

... from the "ahrc" site... both sides of coin discussed...

ATTACHMENTS:

OPPOSTION TO RECORDING

LETTER FROM CALIFORNIA ASSOCIATION OF COMMUNITY MANAGERS (APRIL 21, 2006)

April 21, 2006

Mr. Brian Hebert Sent Via Email
California Law Revision Commission
4000 Middlefield Road #D-1
Palo Alto, CA 94303-4739

Dear Brian:

Re: CLRC Memorandum 2006 - 04

Thank you for the opportunity to respond to the CLRC's Memorandum that relates in part to recording of board meetings.

CACM conducted a survey of its members and volunteers specifically related to a member taping meetings of the Board. While this is not intended to be all inclusive, the following comments generally represent the theme of responses we received concerning the issue. CACM has provided additional comments at the end of each response for the consideration by the CLRC. Though CACM is not taking a position on recording as of yet, we do believe that it is important to recognize the need to allow each board to set policy in order to most effectively serve its own association.

Response #1
"As an attorney serving CID's for the last 20 years my thinking has evolved over the years. I firmly believe that developing a culture of transparency in the operations of the association is the best way to avoid controversy. When owners feel (often unjustly) that things are "secret" they tend to react badly. Beyond proper executive sessions, the owners should be given every reason to believe that the Board and management have nothing to hide. Perception is reality."

"When it comes to taping meetings, in my opinion the Chair of the meeting has the authority to allow it or not. I typically advise Boards to adopt a meeting policy(sample attached), that covers, among other things, taping. Allowing the Chair to decide provides flexibility. If the taping is being done for purposes of harassment, interferes with the orderly process of the meeting, or certain members have a legitimate privacy right to protect (such as the police officer example), the right to tape can be denied."

"And, don't forget, taping can be a very effective way to stop abuse by owners at Board meetings. I have often advised a Board to videotape meetings where an owner has had a history of being rude and abusive during Board meetings. It's a very effective tool in "chilling" abusive behavior by owners."

CACM Comment: As an organization whose membership manages thousands of community associations in California, we recognize and support the important concept of transparency in community associations. The difficulty is the balancing act - balancing the needs of all owners versus the one or two that "want it their way."

We do support the concept of proper governance in CIDs, wherein the board is the corporate entity that should create policy. In other words, volunteer directors must define a set of concepts (based on DS Act, their governing documents, etc.) and principles that provide a complete framework for efficient, focused and productive carrying out of the task of governing the CID. Doing so enables them to experience true accountability. Because directors are held to a much higher standard of behavior and fiduciary responsibility than the non-elected owner, they must have the authority to make decisions and be given the protection afforded under the Business Judgment Rule. A sample governance policy on taping meetings is attached for your review as Addendum A.

CACM suggests the CLRC consider having a discussion regarding the need to encourage CID boards to publish a comprehensive list of polices that conform to existing law and their governing documents. Attached as Addendum B is a list of sample polices CID boards should adopt if relevant to their community.

Response #2
"At all the communities I've managed, up to [association name omitted] taping has been under the auspices of the recording secretary. Communities have varied in the time period that they save the tapes. In all cases, the tapes have been available for folks to listen to without having copies available for them to take with them. In all cases, taping by private parties has been prohibited."

"Currently at [association name omitted] the Board meetings are televised live and have been for years. Obviously, recordings of the meetings by someone at home can be done. The A/V Committee makes a DVD of the meetings and they are available for check out by someone who did not have a chance to see it live or tape it."

"Yes. We have had some embarrassing moments. Thirty days ago a Board member told another one that the next time he comes to a meeting that he ought to sit in the back row with a dunce cap on. Yes. An 'independent' newsletter has transcribed comments, from time-to-time, to appear in their periodical."

"With all of that, I'm not sure why we want to fight the trend. With modern communication technology, the practice will become more and more frequent. I have a philosophy of 'cooperating so you can control,' which I learned in dealing with the press. They are going to get a story so providing the facts is ..., better than saying 'no comment' or resisting. I do believe that there ought to be policy that private tapings are prohibited but making the public tapings available is not always a bad thing."

CACM Comment: This is another example of the balancing act each association must keep in mind. The procedure put into place at this association recognizes the need for transparency, recognizes how technology requires policy changes and reduces the chilling and deposition like atmosphere of taping by an individual.

Response #3
"I believe that taping a board meeting is not in the best interest of the community. The only thing that taping can accomplish is another way to 'catch' someone attempting to do the best job they can. As long as we have volunteer board members, there will be guffaws and probably more misstatements than we like, but nevertheless, it is about governance of a community and holding people to a 'deposition' like atmosphere does not engender trust and faith."

"The loser in all of this is the homeowner who only wants to pay a reasonable amount of maintenance fees and live his life, and maybe, just maybe, we can convince him to serve a term on the board. Although he may begin his service with good intentions, he will be tape recorded, challenged every step of the way and will not be able to be a productive board member because of all the 'empowerment to the homeowner' legislation."

CACM Comment: Our members are expressing grave concern over the lack of volunteers stepping forward to govern CIDs. For example, the inability to achieve a quorum at member meetings to elect directors, the reluctance of many volunteer directors to assess owners as required by Civil Code Section 1365 because they "don't want to be the bad guys," more legislative mandates every year, and threats against board members are being perceived as significant deterrents by the volunteer directors.

We refer the CLRC to an article in the Los Angeles Times on April 3, 2006, by Daniel Yi, relating to threats and abuse against volunteer boards. Adding mandatory tape recording may only serve as one more deterrence to step forward to volunteer as well as increase expenses to the community.

Response #4
"Recording of meetings would bring us closer to the 'governmental agency' realm rather than the corporate realm. My preference is not to allow taping of meetings: too easy to take something out of context; alteration of the tapes; inability to hear everything without microphones; etc. If push comes to shove and taping of meetings is allowed, it will lead to another managerial nightmare of tape storage, retrieval of tapes, being asked to do research from the tapes, etc., etc. The next question is why would taping be necessary? If the minutes are accurate and reflect the ACTION of the Board, this is the official corporate record and the tapes become superfluous."

CACM Comment: As the CLRC knows, minutes, along with other significant records must be made available to all owners within a specified time frame. If consideration of mandated recording of meetings occurs, additional costs via increased assessments could now be incurred by the association members. Currently and in many cases, the manager takes and transcribes the minutes as part of their contract services and then provides the draft to the board for review and acceptance. There is no extra fee to take minutes. Increased costs could potentially include the necessity of hiring a professional recording secretary, transcribing every single word stated by the board, and then maintaining tapes for record keeping purposes. If an owner wants to obtain an actual "copy" of a previously taped meeting, several questions arise as to the costs and monitoring of the duplication of the tape. In this age of sophisticated technology, it is easy to manipulate photos, recordings, and many other forms of records. Could minutes of the taped meeting noting action taken by the board suffice as the corporate record instead of adding additional administrative costs and potential legal costs to "review, store, retrieve, etc." tapes of meetings?

Response #5
"The minutes are to be a record of Board decisions, actions, resolutions, reports, requests from homeowners and any voting by the Board that goes along with these items. The minutes are not to record the back and forth 'he said- she said' that goes on either during or prior to any Board action. "

Response #6
"Since 9/11, Sarbanes Oxley and Katrina, Americans are sensitive to open governance, and suspicious of those interest groups that want to protect the privacy of contractual relationships, such as the management and legal counsel relationships to CID's. Shedding the light of day on proceedings is a kind of group therapy for the expulsion of past sins, and the "gotcha" syndrome that indicates this is just a 'sign of things to come'."

Response #7
"While managing a very large community association in [name of community omitted], this was a huge issue and it is in litigation. The Board has an action against the ex-president who insists it's his right to tape. He tapes all meetings, including committee meetings (only exception, Executive Session)."

"The Board was advised to make and read a policy stating that taping the meetings was prohibited. They did. This didn't matter, he did it anyway. They went so far as to call the Sheriff to remove him. He wouldn't budge. Meetings were cancelled and business was backed up."

"The homeowners were upset because he used the information on the tapes, took it out of context and sent newsletters to residents in his delegate district using the information. More than likely, it wasn't positive information he was distributing."

"We had a several law enforcement officers (owners) who did not want their faces shown much less their addresses recorded or published. In fact, one officer stood with her back in front of the camera when she spoke. She is a valued committee member and they needed her but her fear held her back many times. Several years ago, this association hired an attorney specializing in constitutional law. In essence, this community would be actively against taping meetings."

CACM Comment:
This response exemplifies the chilling effect of taping as well as the abuse that can occur when taping is done on an individual basis rather than allowing the board to set policy based on the community's unique needs.

Response #8
"I too have had historical experience with an owner taping meetings after the President announced several times throughout the meeting that the Association did not allow such taping. It may come as no surprise that the tape was edited by the member and used during a pending lawsuit between the member and the Association. Multiple witnesses were called at great expense during deposition to defend against the edited version of the tape and the Association in the end, prevailed."

"Although taping will chill other members from speaking as many won't speak if the taping is known, it's generally not the actual taping of the meeting that is dangerous, it's what enterprising, techno guru members can do to 'cut and paste' the tape that causes me great concern.

Conclusion

CID Boards are accountable to a defined ownership. The board's job is to govern their community. Leadership, effective policy making, delegation of authority (not responsibility) and the overall role of a fiduciary is the real job. The board is the link between the owners and the organization and utilizes the necessary resources to implement their decisions. The resources are other volunteers (i.e. committees), and third party contractors which include professional community management, legal counsel, risk management professionals, etc. that implement to directives of the board.

Should an effort be made to legislate the recording of meetings of volunteer directors, CACM would strongly encourage the CLRC to consider putting sufficient protections in place for abuses of the practice by individuals. We also suggest that the CLRC investigate and discuss the potential deterrent to volunteer directors obtaining insurance to protect them against the potential negative impact on Directors' and Officers' liability insurance policies and the issuing insurance companies, who might be obligated to respond and defend lawsuits as described in Response #8.

Thank you again for the opportunity to offer our insights.

The 'official' minutes from our last board meeting are pure fiction. Good question, what do you do? I'm hoping to generate enough interest so there are witnesses at least. I also post my own 'minutes' on my 'renegade' website.
I would really like to record, I've injured my hand and can't write.
Jane

Brad, the last post was a "pro's and con's" on taping from the "arhc" site, not me.

IMHO, if an HOA "officially" uses a tape to record a meeting (where guidelines, as you suggested) are in effect, and it is done by, or with the board's consent - then I would consider it to be a record. Again there needs to be a defined purpose, custodial, and need for this action. If you are doing it to supplement or complement minutes, or if you are doing so to create an archives - let the process be known, so that all parties, both sides, are well aware of the potential for abuse. Further there needs to be definition of what the retention of tapes would be, does the local/state statutes/codes speak to how long to maintain, etc? None of this is mentioned (since we previously referenced Virginia's POAA) as a part of that statute.

We moved from "can" a member tape a meeting... to "should" a board tape meetings... not to is it a record... without addressing the questions in the middle.

The argument promoted, was that if an HOA made a tape = record, and the same was the question you presented, was this true or false, and is it supported?

However, absent an official capacity of (anyone - board, or member) I would not consider any taping to be official.

Just as an officer, or director has a responsibility to the community, he/she has an ethical responsibility to act with fiduciary care.

I am NOT against taping meetings, I am however leery of the catalyst for the apparent rush to do so. If the underlying issue is board responsibilities and a board NOT performing with ethical intentions - that is the issue which would seem (to me) that needed addressing. What has been presented here is that errant boards have abused membership, and the "only" method to cure is to tape a meeting.

Do we really believe that a board which is committed to do "dirty" is going to stop doing so, because a tape is turned on?.. or will they just do it in another venue? (not to make trivial the situation here, but some jurisdictions use recording devices to monitor traffic - redlight cameras, speed cameras, etc. After the general public is aware of locations, they "alter" their habits to circumvent the cameras, and then continue on with abhorrent behaviours).

I have been able to use drafted minutes of our previous board, to show clear irregularities in their practices, without a tape. Will that work for every HOA... probably not. I am not suggesting that a viable tool be removed from member's ability to thwart an errant board - just stating that if your toolbox only contains one tool, you might be ill-equiped to effect change.

On the other side of the coin, the legal side, which often states that pragmatically you should NEVER record a meeting (assuming that the reference is aimed at a board doing so officially, and not suggesting that it prohibit a right, as under Va POAA, of a member to record).

From that point of view, I can also understand why a board may not want to record - and it does not automatically mean something is "amiss." The resulting questions here, are would that be a pausible reason for a "director and officer liability" insurance carrier to refuse to cover a cause of action of a board - by stating that they, the board, did not heed sound legal advice? Here we are delving into a lot of "what if's" which I am sure have been addressed in some form - or probably need to be addressed further.

It becomes "chicken or egg, which came first" question - is/did the need to record meetings because of bad boards, or was it a good idea in which technology caught-up and overran existing codes/statutes on the matter?

Brad - Great advice. Thanks.

Judith:

If your board meetings are 2-3 hours long you have a lot of other issues, either meetings are too infrequent or your chair can't keep on task. Ours never went over 1 hour and 30 minutes. Furthermore the board should welcome children to the meeting or help to arrange childcare so parents can attend. Having the option of a tape just gives another excuse for someone to not show up. Yes, it comes in handy if you have a work conflict and could also come in handy if your favorite TV show is on.

Dwight:

Notes should be part of the record, they should be filed with the minutes so if there is any disputing facts you can go back to the notes. Here is my devils advocate for the day...if the HOA records the meeting to decipher minutes can they legally destroy the tape? If it is part of the records of an HOA I wouldn't think so.

I don't know any of this, it is a good question and discussion, I wish there was some precedents or case law on this to give a direction.

Record the meetings the politics can not come into play nearly as much when you have the actual verbage. Also tell everyone in the meeting that the tapes will be kept on file for future reference. Minutes are not aa good or nearly as reliable as the real thing. When people know they are being recorded they think before they speak and hopefully research before they speak like they have authority.

Remember folks most HOA boards have NO training for the position and much of what they decide on is done by the seat of their pants. No one should hold a position with the HOA without training. Most HOA board are made up of very unqualified people. They want the job more for ego than to add real value. An untrained board can hurt property values more than no HOA at all. BAD HOA Boards get talked about and real estate agents learn about the problems and guess what they guide their buyers to other home purchases.

Tough words but very true.