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Subject: Board discussions outside of official board meetings
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PaulL12
(California)

Posts:74


07/13/2021 1:48 AM  
Due to the limited amount of time our board has to discuss issues in our monthly meetings, some issues drag out over several months. Is there a way board members can discuss issues outside of the regular meetings for the purpose of expediting the type of things which homeowners want done quickly? One would think email would work great - and in reviewing Davis-Stirling, I don't see anything explicitly stating board members can't communicate via email or vote on things via email. Does anyone have any insight on this?
PaulL12
(California)

Posts:74


07/13/2021 1:55 AM  
Since I posted this, I found this:

https://www.davis-stirling.com/HOME/Emergency-HOA-Board-Meetings#axzz1kI6qeYfd

Emergency Defined. An "emergency" is defined as "circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice" to the membership. (Civ. Code §4923; Civ Code §4930(d)(1).)

Email may be used as a method of conducting an emergency meeting, provided all members of the board consent in writing. The written consent or consents must be filed with the minutes of the board meeting. (Civ. Code §4910(b)(2).) There is disagreement in the legal community whether emergency decisions via email must also be unanimous. Some argue that unanimous consent only applies to the decision that an emergency exists. Others argue that the unanimous consent also extends to any decisions related to the emergency.

This would raise the question of if all members consent in writing to having the meeting, then does that make it moot as to whether or it meets the definition of "emergency"?
CathyA3
(Ohio)

Posts:2154


07/13/2021 6:22 AM  
Given how strict California's regulations are surrounding board meetings (open and properly noticed), I would say that discussions can't be held via email unless there is a true emergency.

Of course if things drag out long enough, they may well become emergencies, so there is that.

I would say that your board needs to either meet for longer periods and/or meet more frequently and/or come up with ways to make the meetings more productive. I'm assuming that information about upcoming topics is distributed to the board ahead of time so they're prepared to get on with it. Meetings held during normal business hours tend to be more productive than meetings held in the evenings, but that does mean that fewer people would be able to attend.

But at some point you have the accept that one of the negative consequences of requiring open, noticed meetings is that it can slow things down even more than in open meeting states where directors can kick things around outside of board meetings or meet whenever they choose.
CathyA3
(Ohio)

Posts:2154


07/13/2021 6:27 AM  
Posted By CathyA3 on 07/13/2021 6:22 AM
Given how strict California's regulations are surrounding board meetings (open and properly noticed), I would say that discussions can't be held via email unless there is a true emergency.

Of course if things drag out long enough, they may well become emergencies, so there is that.

I would say that your board needs to either meet for longer periods and/or meet more frequently and/or come up with ways to make the meetings more productive. I'm assuming that information about upcoming topics is distributed to the board ahead of time so they're prepared to get on with it. Meetings held during normal business hours tend to be more productive than meetings held in the evenings, but that does mean that fewer people would be able to attend.

But at some point you have the accept that one of the negative consequences of requiring open, noticed meetings is that it can slow things down even more than in open meeting states where directors can kick things around outside of board meetings or meet whenever they choose.



Argh! Correction to last paragraph:

But at some point you have the accept that one of the negative consequences of requiring open, noticed meetings is that it can slow things down even more than in states where directors can kick things around outside of board meetings or meet whenever they choose.

It's states that don't require open meetings that can streamline the process somewhat.
JackJ9
(Oregon)

Posts:98


07/13/2021 6:39 AM  
Just for reference, and I am not in California, but I don't see how our association could be run effectively if we could only discuss things in noticed open meetings. We have a lot going on in our association and decisions need to be made and that happens via e-mail.

Meetings are still important of course but the day to day decision making needs to happen without waiting for a noticed open meeting to discuss.
JohnC46
(South Carolina)

Posts:11180


07/13/2021 6:56 AM  
Jack

There seems to be several schools of thought both legally and/or for efficiency.

1. Business is to be discussed only at notified meetings and no where else.
2. Voting is to be done at only notified meetings and no where else.
3. Business can be discussed (verbally or via Email) with voting done only at notified meetings unless an emergency.

We operate as #3.

Easy for me to say as our HOA operates pretty much on auto pilot. We rarely vote on anything.
SheliaH
(Indiana)

Posts:4062


07/13/2021 8:34 AM  
AS a practical matter, I think emails should only be reserved for emergencies. Just because all the members vote to have the meeting via email doesn’t make it an emergency – to me emergencies are things that affect the safety and health of the community, such as a discussion on repairs to a sewer line (if the association is responsible). It may be ok to use emails to follow up on activities the board has already approved during an open meeting. For example, if my board voted to hire a contractor to cut down trees, subsequent emails may clarify when the work will start and the location of the trees to be cut down.

If you don't have a formal policy on emails, it's time you establish one. In addition to looking at DAvis-Stirling, you may want to talk to your association attorney about preserving them, because emails on association business are considered association documents. Some of those may be provided to homeowners upon request, so you need to be careful what you say and how you say it. Some folks on this website have spoken of some board members emailing certain people on some issues, but not the entire board, so there should be a big no-no on that as well.

Otherwise, I’m with Cathy – it would appear you need to work on setting an agenda that will make your meeting time more effective. Some of that will involve setting priorities – maybe more research is warranted on some issues before it’s added to the agenda for discussion.

You may have to consider the conduct of your colleagues and yourself during the meeting, considering things like: (1) do you wind up discussing issues at length because some people didn’t read material they received? Did they receive it at the last minute or did they simply skip reading it altogether? (2) do people droning on and on repeating themselves? (3) are some board members hesitant at making a decision? (4) are there frequent interruptions because someone’s cell phone goes off during the meeting or residents feel they can jump in at any time and say whatever about what’s being discussed?

Those are just some issues you may be having, and if you’re the president, your job is to preside and make sure all the agenda items are addressed. This could mean establishing a resident forum at the start of the meeting so homeowners can have their say, making sure the agenda and relevant documents are sent to the board members to give them plenty of time to review it and prepare their questions before showing up, or establishing advisory committees that can review certain issues at length, make recommendations to the board and THEN you can discuss and vote on that.

You may also need a timer to make sure things move along – don’t be afraid to use it, and when it’s time to vote, call for a motion and second, then do the damned thing. If people want to table the matter to the next meeting, they can make a motion on that, but you should make it clear the board MUST make a move by the next meeting if it’s something critical.

MaxB4
(Maine)

Posts:701


07/13/2021 8:56 AM  
What some are identifying is Action Without a Meeting, which in California was discontinued as of January 2012, EXCEPT in emergency situations. It was discontinued because of abuse by boards, not having all board members content in writing, not putting decisions in the minutes of next meeting, running a secret society in essence.

California Civil Code defines a meeting as a quorum of directors at the same time and place. Email is not a media conducted at the same time and place. A Zoom meeting, teleconference call or in-person gathering is same time and place. I send out an agenda for a Zoom meeting for Tuesday, July 13, 2021 @ 6:00 PM. That is same time and place.

I sat on a legislative action committee for a local chapter of CAI back in 2011 when this bill came up. After the bill was passed there was dissention between lawyers on the interpretation, some saying email discussions were still ok because of the same time and place clause, some saying no discussion by email allowed. So I went to the State Senator who wrote the bill. The issue was never the discussions, but the voting and action taken in secret. Sorry state of affairs but there are many directors who don't like meeting when the members are present, they feel intimidated.

I am guessing that Action Without a Meeting is in every California HOA for both the Annual Meeting and a Board Meeting. There are boards, whose are self-managed, that still think it is still legal. Since they don't have anyone telling them, how would they know?

So, as long as the phrase same time and place is still in Civil Code, I will follow the advice of the person who wrote the bill. If you have questions, the bill is SB563, passed in 2011. The author is now a U.S. House Representative representing Northern California.

KerryL1
(California)

Posts:8290


07/13/2021 9:23 AM  
I agree with Cathy: "I would say that your board needs to either meet for longer periods and/or meet more frequently and/or come up with ways to make the meetings more productive. I'm assuming that information about upcoming topics is distributed to the board ahead of time so they're prepared to get on with it."

And with Sheila: "it would appear you need to work on setting an agenda that will make your meeting time more effective. Some of that will involve setting priorities – maybe more research is warranted on some issues before it’s added to the agenda for discussion. "

As a Board, Paul, also think about the Board voting to delegate the authority to a director to finish whatever is needed to get Task A done. Or the Board can delegate to the president or a group of directors that's less than a quorum of the Board.

Do you have a property manager, Paul? What size is your HOA?

Our HOA follows the Open Meeting Act statute and only makes decisions by unanimous consent via email for emergencies. Note CA boards were able to make decisions via email for anything to do with Covid 19 and make Emergency Rules as well.



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