Reader Questions – Can We Meet Completely Virtually, Knowing Individual Director Votes, and “Discussion-Only” Agenda ItemsAug 23, 2021
By Kelly G. Richardson, Esq. CCAL
Hi Kelly: Regarding your recent article on virtual board meetings, is it permissible for the board to also be virtual? That is, do we need to physically be together, or can we be virtual? Our HOA is less than 50 units, so we are tiny. Likewise, some board members are landlords and so do not reside in the units. Thanks, sincerely appreciate your column! Best regards, S.S., San Marcos
Under current law, board and membership meetings cannot be completely virtual. Civil Code Section 4090, defining “board meetings,” says at subpart “b” that board meetings conducted by electronic means must still have a physical location with at least one director present so members can choose to physically attend. This requirement has been universally violated since early in the pandemic, as public health orders banned meetings of more than a few persons. Associations had no choice but to violate this requirement. Soon, assuming Senate Bill 391 becomes law, associations will be permitted to conduct completely virtual meetings during times of declared emergency. This bill has passed the Senate and Assembly and is awaiting concurrence of the Senate on some Assembly amendments. It will become immediately effective as an emergency statute if it is signed by the Governor. However, this only affects meetings during times of declared emergency, so Civil Code Section 4090(b) still must be satisfied in all other times.
Outside of emergencies, boards may elect (but are not required) to allow directors to participate virtually in meetings. However, hybrid meetings, in which Civil Code Section 4090(b) is met and members and some directors can participate virtually, should be encouraged and increasingly used.
Thanks for your question, Kelly
Mr. Richardson: Is it possible to find out how each director voted on an issue or is that information private? Recently, when I asked for information about how each director voted on an issue, I was told that the information was not available. Should such information be included in board minutes? Also, at a board meeting, there was an item on the agenda listed as “discussion only.” What actions can be taken on a “discussion only” item? Can a vote be taken at the end of the discussion? S.A., Laguna Woods.
Unless a director calls for a “roll call vote” on a given motion, the minutes will not reflect how a given director voted on a given motion. Without a roll call vote occurring, the only way to know how a given director voted is to attend the open board meeting and observe the directors casting their votes. In a roll call vote, each director separately states their vote and those individual votes are recorded in the minutes.
Items can be announced on the posted agenda as “discussion only,” meaning the board will discuss but not act upon the item. A motion on such a subject would be out of order, as the agenda announced that there would be no action on the item. Civil Code Section 4930(a) bars discussion or action on a subject unless that has been disclosed on a published agenda. Members should be informed if action may be taken on a particular subject, so that they can decide if they wish to attend the meeting.
Best to your community, Kelly