Reader Questions - Open Meeting Act vs. Free Speech

Kelly,

Thanks for your [recent] informative article regarding changes in the Davis-Stirling Act.

In the article you state that the board cannot “discuss anything about the association, except at a formal meeting.” Does this mean that I cannot go over to my neighbor’s house on the next street, who happens to serve with me and one other person on the association board, and discuss the overwatering situation with our association maintained front yards or the condition of the association maintained streets without any decision making intention, but to just broach the subject? If so, this would appear to be a violation of our right to free speech.

Thanks,

R.C., Orange

Dear R.C.,

Unfortunately, the answer to your question is yes, which illustrates a major drawback of the Open Meeting Act’s (Civil Code 1363.05) expansion in January 2012. The intent was to stop secret board meetings, but the consequences of the change are huge and can cripple many boards (unless the board is unaware and or otherwise continues to violate the law).

The law now prohibits a majority of the board (in a 5-member board, 3 or more) from discussing ANYTHING to do with the association, unless that discussion is in a board meeting. Previously, the law only banned discussions about upcoming agenda items. Now, the board can’t even discuss what to put on the agenda, if a majority of the directors are in that discussion!

I recently met with a small HOA board. They have no manager. If they want to decide on a repair, they cannot all go look at the area in question unless they post an agenda at least 4 days ahead. Now, only a couple of directors can look at it at the same time. Well-intentioned directors often want to see what the discussion is about, but now they must either rely on one or two directors, or have a board meeting out at the fence that needs repair.

Another issue concerns electronic mail. E-mail deliberation is banned, but does that ban ALL e-mails? No. A director may send information, but there can be no deliberation on the item. This is tricky. How does someone relay information without the recipients following their normal inclination to respond, thereby violating the Open Meeting Act?

Many compare the Open Meeting Act to the Brown Act, particularly since the former has moved substantially toward the latter. However, the Brown Act applies to cities, which cannot fairly be compared to associations. One has full time paid staff, and a City Attorney, while the other is often run by volunteers with very limited management and legal resources. So, it is very unfair to try to run homeowner associations under the same procedures as cities.

There is no doubt that the purpose of this law was to hamper the ability of volunteer directors to meet and talk about association business, except in formal meetings. This may work with the very large and professionally managed associations, but what about the other 95%? Unlike beach blankets and socks, one size really does not fit all.

One of the greatest ironies of the law is that members can hold an impromptu meeting to discuss any association topic, and it is not a violation of the law… until three of the five directors attend!

Thanks for your question,
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®.