Epsten, APC

Association members may try to record board meetings. Such recording may even be surreptitious. However, there are concerns surrounding permitting the recording of board meetings of which boards and management should be aware.

First, recordings may serve as evidence in subsequent litigation. Association members who try to record board meetings may do so in order to compile such evidence to support their claim. Associations should think twice about fueling a member lawsuit for obvious reasons. A single stray remark may end up exposing an association to liability.

Second, those present at the meeting may be uncomfortable being recorded. A recording device may have a chilling effect on directors and management who are trying to conduct association business without worrying about the specter of potential future litigation.

The Davis-Stirling Act does not require board meetings to be recorded. California Penal Code section 632 in fact prohibits recording a confidential conversation without the consent of all parties. Subsection (a) of the statute provides in part:

A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

Boards may want to consider including a statement on meeting agendas that recording the meeting – via audio or video – is prohibited. Boards can also consider stating at the beginning of a meeting that recording is prohibited (and noting that statement in the meeting minutes). Doing so will help create a documentary record that any recording is nonconsensual per Section 632. This is important because under subsection (d) of the statute, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of Section 632 is not admissible in a lawsuit. 

Finally, it is worth pointing out that Section 632 does not apply to the use of hearing aids and similar devices for “persons afflicted with impaired hearing” for the purpose of overcoming the impairment to permit hearing sounds ordinarily audible to the human ear. This caveat essentially brings those with impaired hearing to equity, by allowing them to hear what others do. 

For additional advice on this subject, please reach out to your friendly community association counsel.