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ChrisB4
(West Virginia)

Posts:175

07/17/2007 8:21 AM
I know this one has been tackled before. I couldn't find anything specific. If this topic has been done already please take a sec to answer or point me in the right direction. First I realize that State and local laws prevail and we have submitted the question to the HOA attorney, but anyone have any insight beyond this? I would like to see them used. I would be glad to share with homeowners that they are being taped. I would be useful for our secretary to use to create accurate minutes and of course there are times we could use them to solve disputes between board members or homeowners. It would also serve as a deturent for any rambunctious homeowner who decides to start flinging threats at Board meetings. Thoughts?

RogerB
(Colorado)

Posts:4686

07/17/2007 8:32 AM
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.

MikeS1

Posts:0

07/17/2007 11:43 AM
Not a problem In VA, it's spelled out in the VA POA act. "Any member may record any portion of a meeting required to be open. The board of directors or subcommittee or other committee thereof conducting the meeting may adopt rules governing the placement and use of equipment necessary for recording a meeting to prevent interference with the proceedings." http://www.rbdlaw.com/associations/files/statutes/Virginia%20POA%20Act%202004.pdf

HaroldS1
(Arizona)

Posts:314

07/17/2007 12:51 PM
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

JudithC
(Virginia)

Posts:253

07/17/2007 1:09 PM
We had a president that recorded board meetings at one point and it drove you nuts as she was flipping the tape, etc. So, I would hope that it would be one that did not interfere with the meeting. Here is an additional thought, then, should the recording be made available to the homeowners of the association and posted on the association website. Perhaps that would spark interest in the goings on of the association. (In Va. it would have to be made available to the homeowners on request unless it was destroyed -- how would you prove it had been destroyed?)

MikeS1

Posts:0

07/17/2007 1:25 PM
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.

Jadedone4
(Virginia)

Posts:495

07/17/2007 1:33 PM
Judith, maybe I am mis-reading something here, but in Virginia, MikeS stated that it is a protected action which the code/statute allows a member the right to record - it does not suggest that the HOA is responsible for providing copies or making them accessible to members. It appears to me that I, as a member can request that the VA board of an HOA allow me to record a meeting, at my own personal expense. Not that the HOA must on a request pay for a taping of it's meeting, to be presented to membership. I do understand the avoidance of taping of a meeting with regards to litigation and how this could come back to create issues for an HOA. In the scope of what minutes are, coupled with recording, it is the ACTIONS taken during a meeting which are the MEAT of the content. Discussions of other matters, while done in the scope of the meeting are not the fabric of what the meeting's content are. Both are important elements of a meeting's format, but only one relates to the business of the HOA, as is CONDUCTED by the board. Still when allowed under code/statute (as MikeS listed VA does) it is always a right which should be respected and enforced by the HOA, completely. Again it is part of the rights afforded to some HOA's by state's to prevent past abuses (potentially); but just as any "rule" it can be taken and used in an abusive manner as well. In the furtherance of doing what is correct, we should expect that responsible parties would tape a meeting and use good judgement in the tapes uses - just as responsible parties would allow taping of a meeting, because if follows the law (if applicable).

JudithC
(Virginia)

Posts:253

07/17/2007 2:22 PM
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!

Jadedone4
(Virginia)

Posts:495

07/17/2007 3:48 PM
Judith, taping of a meeting for informatin outside of the business of the HOA is not (IMHO) appropriate. If you are doing so to complement minutes (say you have an older community and hearing is an issue), that is fine - the minutes will contain only those sections which address board business (i.e. what is voted on, actions taken, etc). HOA's are not social clubs where you tape/video a meeting for prosterity. Board meetings are where the business of the HOA is conducted and should be reserved for those actions. Part of an HOA's responsibility can be to have social functions within the community, but those too follow the appropriate business model (motions/votes to budget for a movie night, coffee/doughnut morning community clean-ups, etc).

JudithC
(Virginia)

Posts:253

07/17/2007 4:21 PM
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.

Jadedone4
(Virginia)

Posts:495

07/17/2007 5:12 PM
Judith, I belive that the section you are referring to is as follows; "Any member may record any portion of a meeting required to be open. The board of directors or subcommittee or other committee thereof conducting the meeting may adopt rules (i) governing the placement and use of equipment necessary for recording a meeting to prevent interference with the proceedings and (ii) requiring the member recording the meeting to provide notice that the meeting is being recorded." As that section reads, it is the right of the member to be able to record a meeting of the board, within the guidelines established above. Reading the full text of POA section, I did not find any reference to the board being required to provide copies to membership of meetings if they (board) decided to record. The statute/code references the requirements for meeting minutes, and books (financial), etc. - being properly available to a member in good standing, at the reasonable charge to the member, etc. The comment regarding social clubs, was aimed at the (sometimes) misguided and forgotten understanding that an HOA often times is an incorporated entity. As such it is a business that is required to be ran in a business manner. Minutes of a board meeting are the recording of actions taken by a board, which affect the management of the community. They are not, and should not be depositaries of conversations, comments, opinions, etc - which are uttered during a board meeting, by any party. You stated "if" and "I" during your post, which indicate hypotheticals or situations where an opinion is issued. Example you stated that "if" the association recorded the meeting, then it should be available to membership. That is not true, when the meeting is taped by the board, the board's only obligation (from above POAA) is to provide copies of meeting minutes, books, etc - it is not to provide a tape to owners. Further the section addresses that the board (alone) establishes the protocol for taping, whether done by board or member, during a meeting. As I mentioned the person/entity taping (again, according to POA) is the person/entity that controls the tape, and how it is used. Just as there are not requirements for an owner taping, to supply copies to the board, the converse is also established. Next transperancy has nothing to do with ability to attend a meeting. Your comparison to placing a tape, or video of a meeting, in assisting an owner who is unable to attend is "apples to oranges." Transparency is achieved by informing the membership of the board's actions. Meeting minutes achieve that, when they are done in a business format. History of an Association is the archival information of it's origin, not the historical decisions of a board. Minutes of a meeting sufficiently address the business history of an Association. If the community wants a "historian" to document the community's history that is fine - however, it is not part of the business side of the association (until funds are issued to achieve this end). I will however agree that as we move towards more and more "information age" technology, that HOA's (and statutes/codes) do need to speed up and remain consistent. However, the way that most statute/codes are (were) written they addressed needs for that particular segment of society, and for that particular period in time (technology). As we move towards video-conferencing, video-phones, etc - more and more options will be available to membership in recording (and in some far off cases, viewing) a board's meetings. Separation of the emotional and the business side of an Association is often difficult, but necessary. Often as President of my HOA, I would love to have a tape to say, well such and such you stated this, etc.. during last year's meeting. However the business side must prevail in that decisions by the board are to be conducted with a requirement of best interest of the community, and in a professional manner. These are business decisions which (as difficult as it may be) should be voided of emotions. When you select a landscaping company, all that matters is the dollar amounts, the funding (budget), references or past performance, and not whether or not the company served muffins to the community. It is simply a business decision, which recorded or not, should be made with business acumen. As to whether or not, implications are made as to why a tape/video was erased or not saved - again emotional and not a business related assumption. Once you become distracted by the "what if's" they you are removing energy from the "must do's" of the association.

JaneK
(California)

Posts:175

07/17/2007 5:40 PM
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

JaneK
(California)

Posts:175

07/17/2007 5:40 PM
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

Jadedone4
(Virginia)

Posts:495

07/17/2007 5:51 PM
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?

JaneK
(California)

Posts:175

07/17/2007 5:59 PM
When the "official" minutes don't match what occurred. I have to ask that question. Probably your loan application was recorded, you're videotaped when you go to the bank, the ATM, walking down a public street, drive thru an intersection. None of this is "personal" like a Dr visit or family reunion.... but then again, someone probably recorded the family reunion and posted it on YouTube. Why would they object to recording a meeting? Jane

RogerB
(Colorado)

Posts:4686

07/17/2007 6:11 PM
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).

JudithC
(Virginia)

Posts:253

07/17/2007 8:09 PM
Jaded, The portion you quoted was NOT what I was referring to. As to the portion that I referenced, I think I will choose to believe as to its meaning what attorneys have told me rather than you. Almost everything is included in the scope of what the membership has access to. In C of the referenced section it tells what is NOT available to the membership. Everything else is -- I am not sure why you do not consider a tape recording of a meeting a record of the association, I definitely do, and am sure that is the way the law has been interpreted. As far as minutes and transparency I just disagree with you. Further, I find your comments smack of sexism.

JaneK
(California)

Posts:175

07/17/2007 10:56 PM
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

Jadedone4
(Virginia)

Posts:495

07/18/2007 4:39 AM
Judith, Please reference the section that you believe does REQUIRE an HOA/board to tape a meeting, and/or to make said tapes available to membership. The confusion I believe it that the POAA lists items which are required to be made accessible to membership, upon reasonable request. It further states how those particular items should be made available, and to whom, and when they can be propery made available to membership. That is where it ends - your assumption is that "everything else is require," is based on a premise that the statute/code was drafted by VA's legislative body to speak to items not included (as a general statement of intent). I believe that you have confused "records" to generally included tape/video recordings if made by the HOA. No where does it state that tape/video's are required to be made by an HOA, nor does it suggest that an HOA has more "duty" to protect (or produce) a tape/video (if made), than a member. The statute/code is silent on that requirement. If I am incorrect please provide the section which outlines the HOA's requirement to tape, record, and/or store/treat those recordings as if they were minutes, books, or records of the HOA. As to the sexism, the comments and analogies of social clubs (of which I belong to two, one of which is co-ed), and use of emotional decisions in business practices - they stand for each sex. We had a post recently were a board-member went to a local health department, which raised a flag with the local media - it was deemed to have been an incorrect action, by the comments on the board. It was an "emotional" decision by the board-member, and not one which included, or considered the business, and fiduciary duty of the directors to the HOA. I believe that the director was male, and it was an emotional decision - of which it was noted by posters here. If you felt that the responses were geared to a particular sex... I can assure you that they were not. Regardless of a person's sex, emotions sometimes play an improper part in our decision making processes. When those decisions concern an HOA, they should be absent emotions in the decision-making process; however, they can be addressed from an emotional position. There are many issues in my community that I could, as a general matter, care less about either way (what type of flowers for beddings, hours for pool operation - to accomodate summer kids, etc). Since I do not have an attachment to the results on that level, for me it is about making a decision that speaks to the majority's needs, that also addresses the business side (budget for flowers, budget/liability of pool hours, etc) of matters. In speaking to transperancy, the HOA has a responsibility to assure that managing of the business of the community is fully transparent. Notice I used the words, HOA, community, and managing of business. While the board is fully open to the membership's proper review, it is not, and should not (IMHO) be subjected to unwarranted scrutiny, by a few members. If the community is insecure in the board's performance, then the community as a whole should seek to remove, address, or become more involved. What often occurs in HOA's is that a board will make a decision in full disclosure to membership, via a meeting, notice, etc - and because it is not "accepted" by a member, or minority of members the assumption is that the decision was made in secrecy. Boards make unpopular decisions for the community both ways - items which cause hardship for community (dropping of a service which there is a lack of funding), to making a decision to speak funds when times are "tight" (requiring an inspection of a safety condition in the community, which could further cause exposure to liability to the HOA). That is the reason that directors are elected to an HOA - to make those decisions on behalf of membership. Now if minutes do not match votes, or board's hold secret meetings, etc - tar and feather the bums. This is NOT how an HOA should be ran - and it does speak to integrity, transperancy, and other ethical issues. But remember, membership is not "virgins" in that process - as they are the individuals who BOTH elected the bums into office, caused the election of bums to office (by lack of voting, participation, etc), or failed to take adequate measures as a community to assure that the community's business was managed properly. We cannot be "sideline" players in how are communities are managed.... If the board is not preforming as the community (not a minority) wants - vote them out of office, and be willing to assume that role and responsibility. Your neighbor's are NOT an M/C to be directed by you or anyone else, they are not "employees" of the HOA, but rather volunteers who do service for the community at no compensation, and in some measures, no "thank you's." If you have that level of issues with your board, get involved and change things by being an active participant.

JudithC
(Virginia)

Posts:253

07/18/2007 5:03 AM
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.

Jadedone4
(Virginia)

Posts:495

07/18/2007 5:30 AM
Judith, Yes, I am very familiar with Virginia's POAA, and even the local counties which have manuals addressing POAA, and Condo Act as they relate to community associations. Your stated "opinion" was that if an HOA tapes a meeting that equates to, it is a "record" which is required under POAA to be submitted to membership, upon appropriate request. Most Virginia attorneys advise HOA's/Condo's board to NOT record meetings because they are "discoverable" meaning subject to subpeona (I would also expand that to say that most national attorneys would state the same). Two sides to this coin... does that (automatically) mean that a board is trying, or has a need to "hide" something? and... does a board have the fiduciary responsibility to protect the association by not recording meetings, or at the very least recording and retaining appropriate protocol/control on use of tapes its has made? You stated, that you would not "knowingly disobey the law..." by not taping meetings, you are in fact refuting your original argument. There is no requirement to tape, nor is there a requirement if you do tape to make available to membership - POAA only references the statute driven requirement of "allowing a member to tape a meeting," there is no mention of what requirements the board/association must do if they decide to tape (just as POAA does not speak to any limitations to what the member can and cannot do with regards to the tape - i.e. post on youtube, internet, splice and edit outside of original, etc). I merely asked for the reference under POAA where it defines a tape/video as part of what is "required" to be submitted to membership.

DonN
(Michigan)

Posts:357

07/18/2007 7:57 AM
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 Nordeen Governance of Property Owners Associations

BradD2
(Florida)

Posts:418

07/18/2007 8:07 AM
Don one of the problems is that most board members are volunteers and are unsure of what is and is not allowed. That is one reason that I have been pushing for a bunch of policies that dictate how things will be done so that as long as the board follows the policies we are ok.

RogerB
(Colorado)

Posts:4686

07/18/2007 8:57 AM
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.

Jadedone4
(Virginia)

Posts:495

07/18/2007 9:03 AM
Don, I actually AGREE with you that board/HOA meeting need and MUST be transparent. However what I do believe also is that each owner has a responsibility to the community as well. That responsibility, the shared community responsibility is that the owner attend meetings, be active in the community's goverance, and participate. It is not (IMHO) appropriate for an owner to not participate as described above and the "expect" that the minutes of the board/HOA should be "cliff notes" for them to review. In this particular "audience" or forum you have folks who have taken, or are taking the time to learn about their rights and responsibilities, as being in an HOA/Condo/Community association. However, it was posted that even here there are less than 20% of those registered/logged, who actively post to the messages. This too is a very real issue for HOA/Condo communities as well. The real culprit to this situation (again, speaking from my community and experience) is community apathy, and ignorance of what the roles and responsibility of being in an HOA are. This is sometimes on BOTH sides of the fence, and affects board-members and membership, equally. There are surely board-members who have not read even their own governing documents, sitting in decision-making positions on HOA's (much less have read what local/state/federal laws as they affect HOA's). I however do not believe that blame can be conveniently placed on boards who perform their uties in a business manner. We can argue all day about which caused the riff's between membership and board's not willing to tape/video meetings, and whether or not the merits of both outweigh the other. And the stagnate assumptions from both camps will remain entrenched. As I mentioned, this particular forum/audience more than likely is active in their respective community's governance. This active role may have started as a result of a "bad board" or it may started in a genuine interest in assisting and fulfilling their responsibility to the community. I disagree that "many boards are sensitive to any kind of documentation regarding their actions," - I earnestly believe that most boards want to present qualified information and disclosures to the community. However, at what cost does this mean for the community? If you have membership which does not attend meetings, to bear witness to the actions of a board, then how do you achieve this "information transfer" to membership? Again, if a board governs in secrecy... tar, feather and vote the bums out of office. If a board refuses to present records of an HOA to members in an appropriate format manner, the membership has the right to sue to get that information, vote the bums out, or file complaints with local/state jurisdictions. We cannot expect that when membership brings the rules of football to a basketball game, that a board must comply. Most if not all governing documents, and most if not all local/state code/statutes speak to membership's rights to review HOA documents and finances, etc. It is often the ignorance of membership which prevents this, and there are some board's which prevent disclosures. It would be my suggestion that board's work to educate (as Brad suggested, and as this forum does) it's membership.. but that too must require acceptance of the information by membership. Membership must be an equal participant in the process, and cannot reside on the sideline shouting out orders and/or complaints of the board's actions or the situation. It is also distasteful when assumptions are made about a board's activities. When folks use comments like "if there is nothing to hide, why the secrecy..?" If you ask your board for information, and it is refused, that is secrecy.. if you do not ask for the information, there is nothing secret about the actions. Virginia POA is an good source of "rights" for homeowners where what a board can, and cannot do, is clearly defined. The thread here, discusses tape/video rights of board meetings. Virginia POA, is specific - a member has the right to record a meeting, and the board cannot prohibit this (they can only limit the placement of recording devices, and speak to the devices not disrupting the meeting). It does NOT speak to the HOA's requirement to make tapes of meetings (if an HOA does so), to members, nor does it speak to what a member can or cannot do with the tape. As a HOA President I would never prohibit a member from taping a meeting. However if there was need for the board to tape a meeting, I would conversely expect that the board would retain control of the tape, and its use. IMHO, this falls to the fiduciary duty - care, in terms of protecting the HOA from any misrepresentation of that tape, or use in a manner which is adverse to the HOA. Since there is no requirement for a board in VA to tape it's meetings, and no further instruction on retention of tapes (or if the tapes should be made available to membership), it would be my position the tapes be used for the stated purposes, and can (and should)be destroyed upon completion. If the membership relies solely on minutes to be "informed" about board actions, and the governance of their community - that begs a different set of questions on to whose responsibility is it to inform, and to assure that information is presented to the membership. If the arguement is that membership has no responsibility to assure that they participate in community goverance - then I just do not see how it can be reasonable to expect a board to be a "cure all, for all" with regards to making membership aware of actions. Now if the arguement is that membership shall have full access to board decisions, and is invited and welcomed to meetings, to review documents, finances, etc - that speaks to a health balance. Minutes are not meant to be the only methodology to informing membership, it also requires that membership be active as well. The orginial post suggested that the taping of meetings would be to assist the secretary for minutes, act as a deterrent of abusive/rude homeowners, etc - and did not state whether or not that particular HOA wanted to create an archive of past meetings via tape/videos. It would seem to me that if you are doing this to complement your meetings, and not as a archival/retention program, and that minutes (which mind you are required by Robert's Rules of Order to be "reviewed and accepted" at the next meeting - which would bring to mind do you require the board to listen to past meeting's tape/video?), then would be drafted, what would be the purpose of having the tapes, from a board prespective? If the owners felt that strongly about tape/video's, allow them to do so to their's hearts delight. But I still do not believe that the responsibility should fall to a board to tape meetings and supply copies to membership - minutes should always satisfy the requirements of information for membership (and if the member is present at the meeting, he/she is a first hand participant, and witness to the actions of the board).

BradP
(Kansas)

Posts:2491

07/18/2007 11:17 AM
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?

HowardG1
(Nevada)

Posts:6

07/18/2007 11:23 AM
ChrisB4: Our NRS116 (state statutes) allow the homeowner to record the homeowner/BOD meetings. No matter how detailed your secratary writes the minutes there is always items not written down, therefore the recording will be the proof needed in any discussion or questions. If your BOD will not allow recordings then they might have something to hide. Believe me some of the boards I have been on were so out of bounds that the only way to prevent total disaster was to hold their feet to the fire by reminding the BOD that everything they say is on tape. We have to remember that some board members have no idea what the laws are - CC&R's, Bylaws, Rules & Regs or state statutes and they want to do things their way - WRONG. Regards, HowardG1

MikeS1

Posts:0

07/18/2007 12:41 PM
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.

JudithC
(Virginia)

Posts:253

07/18/2007 5:03 PM
Brad, The way I read the law, and was taught the POAA, it is an "everything but what is specifically excluded" type of law. As such, I fully expect under 55-510 a tape of the meeting that is used to create minutes is part of the information that is available to a homeowner for inspection. I saw one newsletter where the law firm was explaining that even correspondence should be made available. They also emphasized the word "may" in the law as in "the list of things that may be excluded are:".i.e. even the exclusion list of personnel records does not have to be excluded from inspection, just may be. (I always particularly listened to the arguments about homeowner accounts and my impression is that if push came to shove, you would have to reveal them also, but there were some that said no). They state (Segan, Mason&Mason) that "all records, documentation, and correspondence that is compiled for the board must be available for review". The Fairfax HOA manual just makes the general statement that "associations must conduct open meetings, keep detailed books and records, and with very few exceptions, make them available to members" I doubt if there has been a law case, or at least a recorded law case yet, on the availability of tapes to the homeowners, but to get around it you would have to do a tap dance about how such tape is not a record of the association. The old advice that we were given of "when in doubt, make it available" seems to cover a tape used to record the association meeting. That is probably one of the reasons that attorneys would prefer you not to record meetings!

Jadedone4
(Virginia)

Posts:495

07/18/2007 5:45 PM
... 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.

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