Reader Questions - Non-Action Board Discussions, Alcohol

board members c c & rs governing documents h o a homefront reader questions Jun 15, 2015

Dear Kelly,

Can the board of a condominium meet without the manager to discuss board business and take action as long as the agenda is posted? Can board members meet to discuss items of interest as long as no action is taken on items? In this case no agenda would be posted.

Your column in the [paper] is very informative. I look forward to reading it. Look forward to your response.

Thanks,

Y.M., San Diego

Dear Y.M.,

There is no requirement that boards include their manager in meetings. However, most of the board’s “due diligence” information for ordinary decisions will come from the manager. Unfortunately, managers are often underused during board meetings, as boards fail to ask the manager for input on matters being decided. Why have the manager present at board meetings if they are only taking notes? If their contract includes the service of attending board meetings, managers be expected to attend meetings prepared to advise the board, which is one of their important management functions. If your contract includes meeting attendance, the manager should be present and helping the board meet its “Business Judgment Rule” responsibilities, except when the manager or management company is the subject.

Whether or not the manager is present, any time a majority of the board (i.e., a “quorum”) discusses HOA business, that discussion is a “board meeting” under Civil Code Section 4090, and the Open Meeting Act (Civil Code 4900-4955) must be followed. Except for emergencies, board meetings must be announced with an agenda and open to members. With some narrow exceptions, the board cannot discuss items not posted on the agenda. The idea is that homeowners should be able to observe meetings when a topic interests them. Posted agendas and open meetings give your neighbors a fair opportunity to determine if a particular meeting is of interest to them.

Some boards find it convenient to meet in closed session or otherwise to circumvent the Open Meeting Act. Regardless of calling it a “working meeting,” “committee meeting,” or “officers meeting,” if a quorum is present, it is a board meeting, and the homeowners should be notified and able to attend. Remember also boards cannot pre-discuss issues by e-mail under Civil Section 4910(b)(1). Open meetings build trust, and boards working in secret harm that trust.

Thanks,
Kelly

Hi Kelly,

My sister lives in a home that my husband and I co-own with her. Being a small neighborhood, meetings are held at private homes. Board members drink wine while conducting business. Is this legal? Are decisions made while drinking alcohol considered sound? Just wondering.

Thanks!

V.M., Vista

Dear V.M.,

The Business Judgment Rule is the basic standard for board conduct, and, for better or worse, there presently is no crime called “GUI” (governing under the influence) – perhaps we need such a prohibition! Imagine, a board decision is being discussed in court regarding whether the board acted in good faith, in the best interests of the association and upon reasonable inquiry (the BJR requirements) and it turns out an accusation could be made that the board’s judgment was impaired by a nice cabernet or IPA? I’d hate to have to defend a board in that position! My suggestion to boards – hold adult beverages until after adjournment.

Soberly yours,
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®.