Reader Questions - E-mail Board Votes, Offensive Speech

Good Morning Mr. Richardson,

I am an avid reader of your column, longtime member of my association and currently a board member.

Over the weekend our manager asked us to vote over the internet. I responded that we are not to do this. How and why would the manager put us in this situation and ask us to break the rules. I don’t accept this – we the board are asked to uphold and live by the rules and now the person in charge is asking us to break the rules. Any help on how to handle this would be great.

J.S., Stanton

Dear J.S.,

The “Open Meeting Act” (Civil Code 4900-4955) permits board votes by electronic mail only in one narrow circumstance. Civil Code 4910(b)(2) permits voting by e-mail only in emergencies, and if the board has unanimously in writing or by e-mail agreed to permit emergencies to be handled that way. Civil Code 4910(b)(1) expressly prohibits any other board decisions from being made by e-mail. I am guessing from your question that your manager had not collected such permission, and that the decision was not an emergency.

If the decision is not a bona fide emergency, the decision violates the law and is at risk of being set aside as outside the corporate power. Mistakes will happen, and when they do, boards should admit the error and vote in the next open meeting to ratify the decision – that way it is “daylighted” in the minutes and your neighbors know the board can be trusted to do things the right way.

Thanks,
Kelly

Hello Mr. Richardson,

My HOA is proposing a new policy that will permit the board to file a police report if a member uses profanity at a board meeting. The issue I have with this proposed policy is that the President has referred to homeowners using foul language, and another director made discriminatory racially insensitive comments in my presence while conducting board related business. In light of these factors should this board be allowed to file a police report on a member who may say such words as are regularly heard on network TV shows and are not censored?

Your reply on this issue will be greatly appreciated.

Thank you for your time and consideration,

L.T., Escondido

Dear L.T.,

Meeting conduct rules banning disruptive speech are a good idea, but those rules should apply to everybody – especially directors, who represent the association and should display leadership. Although society’s standards continue to fall in this area, prohibiting profanity is still allowed. Racist or other foul speech should be prohibited, as members should be able to observe professional, dignified meetings – even when people disagree (no, ESPECIALLY when people disagree).

When drafting meeting rules, my first priority is limiting disruption and preventing conduct everybody would agree is unacceptable.

Before trying to involve the police when someone uses foul language, you might want to ask them about this first – they may prefer not to be involved.

When writing or enforcing rules, always remember the first rule of HOA governance – be reasonable.

L.T, never hesitate to speak up about racist or other discriminatory remarks – they could be evidence of violations of the Unruh Act or Fair Housing laws – and they are morally wrong.

Thanks,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.