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Keeping Your Association Above Water: Pool Rules and Required Signage

Victoria R. Minor, Esq.

Attorney

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Practices: Community Association Counsel 

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Keeping Your Association Above Water: Pool Rules and Required Signage


With temperatures warming up, that means pool season is right around the corner.  Certainly, community association board members and management staff alike hope residents and guests utilize and enjoy the pool area. It is essential to the safety of a community to implement reasonable rules which comply with the law regarding use of the pool area to ensure the pool area remains a safe and positive environment for all residents and their guests to relax and enjoy the beautiful weather Southern California has to offer.

Required Signage

Today, associations with pools and/or spas are required to post “No Lifeguard” and “Caution” signs pursuant to Sections 3120B.4 and 3120B.7 of the California Code of Regulations.  Prior to 2019, Cal. Code Regs. § 3120B.4 required “No Lifeguard on Duty” signs to state “NO LIFEGUARD ON DUTY” in addition to “Children under the age of 14 shall not use pool without a parent or adult guardian in attendance.”  However, a US District Court in California found that such restrictions (and signage) discriminated against families with children (protected by federal and state fair housing laws), in that it treated families with children differently and less favorably than adult-only households.  (See United States v. Plaza Mobile Estates (2003).) 

Accordingly, in 2019, Cal. Code Regs. §§ 3120B.4 and 30120B.7 were amended to remove the discriminatory language from the required signage.  After the 2019 update, the required verbiage changed to “NO LIFEGUARD ON DUTY” followed by “Children should not use pool without adult supervision.”  Similarly, the “Caution” sign verbiage for spas changed from “Unsupervised use by children under the age of 14 is prohibited” to “Children should not use spa without adult supervision.”  (See Cal. Code Regs. § 3120B.7 for additional required verbiage.) 

Although 2019 may feel like a lifetime ago, many community associations may still have signage with the pre-2019 discriminatory language posted within their pool/spa areas.  If your association falls into this category, your association should contact its legal counsel and take action to update the expired signage to remove any discriminatory language and comply with the law.

What to Include in Your Pool and Spa Rules

When crafting rules governing use of the pool and spa, the board should be sure to create rules with a behavior-focused lens; meaning that rules should focus on the behavior or conduct of those using the pool/spa area as opposed to the characteristics of those using the pool/spa area.  For example, pool/spa rules should focus on conduct which causes safety concerns, such as no running on the pool deck, no alcohol in the pool/spa area, no glass containers in the pool/spa area, no diving, and requiring proper swim attire, etc.  Rather than prohibiting more generally the play of young people, for example, “No horseplay.”

It may also be a good idea to clearly identify any applicable hours of operation, access requirements (i.e. key/keycard required for access, sign-in upon entry, etc.), and any guest policies in place (i.e. guests must be accompanied by a resident/owner).

What Not to Include in You Pool and Spa Rules

It is also important to note what not to include within your association’s pool and spa rules.  The board should be sure not to adopt rules that cannot be enforced and/or may expose the association to liability. 

When creating rules, the board should avoid any reference to specific ages, familial dynamics, or any other potentially discriminatory language.  Although restrictive pool and spa rules may be well-intentioned, such discriminatory language may expose an association to potential claims of violation of fair housing laws.   Furthermore, such discriminatory language would only be acceptable if the association could successfully argue a compelling business necessity and the language is “the least restrictive means to achieve that end,” (Fair Housing Council v. Ayres, 855 F. Supp. 315, 318-19 (C.D.Cal.1994), which is an uphill and expensive battle.

As mentioned above, the key when creating pool/spa rules is to focus on behavior rather than specific characteristics of pool users.  If you have any questions regarding your association’s pool/spa rules, it is recommended the board consult with legal counsel.

When “No” is not an Option A short Tutorial on Levying Emergency Assessments

Karyn A. Larko, Esq.

Shareholder
Co-Chair of the Transactional Department

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Practices: Community Association Counsel 

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When “No” is not an Option A short Tutorial on Levying Emegency Assessments

Civil Code section 5610, which was amended as of January 1, 2025, identifies certain circumstances under which a board can impose a special assessment without the approval of the members even if that special assessment, on its own, or when combined with any other special assessments levied during the same fiscal year, will exceed five percent (5%) of the association’s budgeted gross expenses for that fiscal year.

What Qualifies as an Emegency

The three (3) categories of expenses that qualify for an emergency assessment are:

  • An extraordinary expense required by an order of a court.
  • An extraordinary expense necessary to operate, repair, or maintain the common interest development or any part of it for which the association is responsible where a threat to personal health or safety or another hazardous condition or circumstance on the property is discovered.
  • An extraordinary expense necessary to repair or maintain the common interest development or any part of it for which the association is responsible that could not have been reasonably foreseen by the board in preparing and distributing the last annual budget report.

Requirements for Levying an Emegency Assessment

The board must pass a written resolution approving the emergency assessment at a duly noticed open session board meeting, and the board vote to impose the emergency assessment must be on the agenda.  Additionally, the membership must be given written notice of the emergency assessment via individual delivery no less than 30 days and no more than 60 days before the emergency assessment becomes due.

If the emergency assessment is being imposed to cover an extraordinary repair or maintenance expense that could not have been reasonably foreseen by the board at the time the most recent budget was prepared and distributed, the board resolution approving the assessment must contain the findings as to the necessity of the extraordinary expense and why the expense was not or could not have been reasonably foreseen in the budgeting process.  A copy of this resolution must be included with the notice of the emergency assessment that must be given to the membership between 30 and 60 days prior to the due date for that emergency assessment.

PRACTICE TIP:  If there is any doubt whether an expense qualifies for an emergency assessment under Civil Code section 5610, check with the association’s legal counsel.  Better to know up front that an emergency assessment is not appropriate than take the chance of a member successfully challenging the legality of the assessment later on.

 

 

 

AI Tools in CIDS: User Beware

Jillian M. Wright, Esq.

Shareholder

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Practice: Community Association Counsel

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AI Tools in CIDs: User Beware

For better or worse, artificial intelligence has arrived in our industry. Both board members and homeowners alike across California are turning to large language models (LLMs) like ChatGPT and Claude to navigate the complicated world of community association governance. While convenient for some, the risks are real. If used carelessly, AI can expose confidential information, generate legally inaccurate advice and information, and arm adversarial homeowners with enough inaccurate (and lengthy) ammunition to keep a board busy and asking for legal intervention and interpretation. In this article we highlight the pitfalls of AI and provide tips on how to avoid them.

Preserving Executive Session Confidentiality and Attorney-Client Privilege

Boards members must exercise serious cautious when using AI. The California Civil Code allows boards to hold executive sessions, also known as closed session, meetings to discuss specific sensitive matters like litigation, the formation of contracts, member discipline, personnel matters, and delinquencies. These sessions exist precisely because the California legislature recognized that the topics should remain confidential. What a board discusses in executive session cannot be disclosed to the general membership without board authority.

In light of that, when a board member copies and pastes executive session notes or details of pending litigation, for example, into a commercial AI tool to get a summary or draft a response, they may be unwittingly pushing that information into a system they do not control. Most consumer-facing LLMs retain conversation data to some degree and use inputs for training unless users opt out. The LLMs store information on servers governed by terms of service, not California law. As such, using LLMs for association purposes may unwittingly breach the confidentiality of executive session without board authorization.

This exposure is not hypothetical. Indeed, in the federal case of United States v. Heppner (2026), the court ruled that documents generated using a publicly available AI tool are not shielded by attorney-client privilege or the work product doctrine. In the case, Heppner used an AI tool for guidance on his legal case. Heppner created documents through the AI tools and shared them with his legal counsel. The court ruled that the documents created were not protected by attorney-client privilege. While the court limited the ruling, acknowledging that the outcome may differ with alternative facts – for example, if the attorney had used the AI tool – and this case is not direct precedence in California, this case is a warning for all boards. If you share what you consider confidential information with an LLM, there is little protection for the work product that results. Exposing confidential information and waiving attorney-client privilege without board authority could be seen as a breach of fiduciary duty to the association.

 

PRACTICE TIP:

Never input names, addresses, account balances, legal strategy, personnel matters, or any information discussed in executive session into a commercial AI tool. Use AI for structure and language – not processing content or asking for specific legal advice.

 

When Owners Use AI Against the Board

 We have recently seen in our practice an uptick in homeowners using AI tools strategically against the association. Homeowners who believe the board has violated their rights are armed with open-source summaries that have boards working overtime. Being informed about the applicable law is not inherently problematic. Informed homeowners will hopefully make for healthier communities. However, AI-generated content is not always accurate. This is because many AI tools are designed in a sycophantic nature; meaning these tools are designed to generate responses the system thinks the prompter wants, as to opposed to providing the most accurate and correct response.  The results produced are produced with such clarity that homeowners have been known to use legal misinformation with confidence and stubbornness. When boards attempt to correct the record or provide the necessary context, the perception of bad faith can spiral quickly.

In this upswing in AI usage, we have also received lengthy association record demands as the AI tools dramatically lower the effort required to generate formal-sounding demand letters and Public Records Act-style document requests. A single motivated homeowner can now produce a volume of written demands that would previously have required legal representation. Management companies are flooded with correspondence that is time-consuming to answer, even when meritless.

Conclusion

While it is unlikely that boards or owners will abandon AI tools, both sides should use them with clear-eyed awareness of the limitations. Boards may want to consider adopting an AI policy determining which tools are approved and how. Owners should treat AI output as a starting point for research, not a final legal opinion. For both owners and boards, when a dispute may have serious consequences, reach out to legal counsel. It is worth the cost to double check the advice from AI and to be able to rely on attorney-client privilege to protect the advice given to the board.

AB 130…Here to Stay

Jacquelyn E. Quinn, Esq.

Senior Attorney

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Practices: Community Association Counsel | Commercial CID

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California Assembly Bill 130, enacted on June 30, 2025, was revised at the very last minute to include amendments to Civil Code Sections 714.3, 5850 and 5855, which address association fines and enforcement procedures. The changes were added just days before the bill was signed into law without any committee hearings or opportunity for feedback. Leaving those most impacted by it, associations, with bad law and more questions than answers.

Most notably, AB 130 caps fines for many governing document violations at $100 per violation. The major takeaways regarding changes to permissible fines include:

      • Fines for violations are now capped at $100 per violation or a lesser amount adopted by fine schedule. As of June 30, 2025, associations are prohibited from imposing fines over $100 unless the exception discussed below applies.
      • The exception to the $100 fine cap is for violations that may result in an adverse health or safety impact on the common area or another association member’s property. To invoke this exception, a board must make a written finding at an open board meeting specifying the adverse health or safety impact of such violation. One way a board may satisfy this requirement is by making a finding in an open meeting a specific violation is adverse to health or safety on a violation by violation basis. Alternatively, an association could amend its rules to provide a general category of violations are adverse to health or safety (i.e., speeding, glass at the pool, off leash dogs in common areas) and therefore, subject to fines in excess of $100 without having to re-vote on the same violations over and over again.
      • Board shall not impose discipline on a member when the member cures the violation prior to the hearing and, in situations where curing the violation would take longer than the notice period before the hearing, when the member provides “financial commitment” to cure the violation. AB 130 does not define or provide an example of what a “financial commitment” is, but one option may be to impose a fine and hold it in abeyance subject to the member curing the violation by a reasonable deadline.
      • No late charges or interest may be charged for a fine.
      • Fines Imposed Prior to June 30, 2025, are not impacted. While AB 130 alters how associations may impose fines going forward, it does not invalidate previously imposed fines.

The new language of the statute also modifies part of the enforcement process, including:

      • If the board and owner are not in agreement following a hearing, the owner may request IDR. This is not a change to current law since an owner could always request IDR regarding an association dispute.
      • If the board and owner reach an agreement after the hearing, the board must prepare a written resolution to be signed by the board and the owner. The resolution will be judicially enforceable.
      • Written notice of a Board’s decision to impose disciplinary action is now due within 14 days of the hearing. Previously, notice within 15 days was required.

In summary, associations must immediately comply with AB 130, including generally no longer imposing fines in amounts more than $100 after June 30, 2025, unless a written finding is made by the Board at an open meeting the violation will have an adverse health or safety impact. AB 130 also does not necessarily require an association to suspend any enforcement actions until it amends its rules or fine policy, but boards will need to review and revise these policies to bring them into compliance with AB 130 before they are distributed with their annual policy statement. Associations should consult with their community association legal counsel regarding how to best integrate and comply with the new requirements of AB 130 for their specific community.

Automated License Plate Reader Cameras and Mandatory Policies

Emily A. Long, Esq.

Coachella Valley Office Managing Shareholder

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Practices: Community Association Counsel | Civil Litigation

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Flock cameras and other Automated License Plate Reader (“ALPR”) cameras have been used for 10 years or more by cities and law enforcement. More recently, ALPR cameras have become popular in community associations due to the cameras becoming more affordable, smaller, and easier to install. As to community associations, ALPRs allow for easy entry into gated communities by capturing still images of a vehicle’s license plate, not video, that are extracted by artificial intelligence for cataloging and retrieval purposes and allow access to residents if on an approved list. Pictures also may include the make, year, model, and color of a vehicle. Depending on the angle of the camera, the vehicle’s occupants also may be discernible.

In California, the use of ALPRs is governed by Civil Code sections 1798.90.5-1798.90.55, which require that all persons operating an ALPR system maintain reasonable security procedures and practices to protect ALPR information from unauthorized access, destruction, use, modification, or disclosure. “Persons” include an “association” or “corporation” under the statute, meaning that community associations are required to maintain these security procedures required under law.

Civil Code section 1798.90.51(b)(2) also requires community associations and other ALPR operators to implement a usage and privacy policy in order to ensure that the collection, use, maintenance, sharing, and dissemination of ALPR information is consistent with respect for individuals’ privacy and civil liberties. This policy must address various enumerated subjects, including the authorized purposes for using the ALPR system and collecting ALPR information; a description of how the ALPR system will be monitored to ensure the security of the information and compliance with applicable privacy laws; the purposes of, process for, and restrictions on, the sale, sharing, or transfer of ALPR information to other persons; and the length of time ALPR information will be retained. The policy must be made available to the public in writing, and, if the ALPR operator has a website, the usage and privacy policy shall be posted conspicuously on the community association’s or other operator’s website.

In the 1st District Court of Appeal case, Bartholomew v. Parking Concepts, Inc., 118 Cal. App. 5th 438, Brendan Bartholomew sued Parking Concepts, Inc. alleging that it automatically collected his license plate information when Bartholomew parked his vehicle in its parking garage without implementing and making publicly available a policy regarding the collection and use of the data collected in violation of Civil Code §§ 1798.90.5-1798.90.55.

The Court agreed that the collection and use of Bartholomew’s license plate data without implementing a statutorily required privacy policy, constituted harm in and of itself. There was no need for Bartholomew to prove damages in that Parking Concepts illegally shared Bartholomew’s license plate data or used it for any particular purpose.As a result, if your community uses ALPR cameras and does not have a privacy policy that is accessible to community residents on your website, the association should work with its ALPR vendor and/or community association legal counsel to prepare and adopt such a privacy policy.

Emerging Generative Artificial Intelligence Governance in Community Associations

Gabriel P. Huerta, Esq.

Attorney at Law

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Practices: Civil Litigation & Appeals

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On July 29, 2024, the American Bar Association issued Formal Opinion 512, its first formal ethics guidance on the use of generative artificial intelligence (referred to as “GAI”). While addressed to attorneys, these ethical guideposts affect directors and managers when employing GAI in the daily operations of their community associations.

Formal Opinion 512 highlights the duties of competence and confidentiality under Model Rules of Professional Conduct sections 1.1 and 1.6. Directors and managers hold similar fiduciary duties, which have been discussed in the previously posted Best Practices article. The key takeaway as to competency is that directors and managers need to understand that GAI can “hallucinate” – that is, produce false or misleading content. Thus, all GAI-assisted output should be treated as an assistant for the first draft, not as the final editor. Directors and managers can be trained in GAI literacy by focusing on input parameters and output verification to ensure accurate work product.

As for confidentiality, directors and managers are custodians of association records. For every GAI software that an association utilizes, it is important to verify each software’s policies pertaining to data encryption, storage location, document retention, and user accessibility. It is also important to know whether data input by the user is used to train language learning models. These verifications ensure data security and privacy compliance as GAI becomes integrated into the standard operating procedures of associations, especially for niches such as the Safe at Home Program under Civil Code section 5216.

Additionally, Formal Opinion 512 highlights the importance of transparent communication under Model Rules of Professional Conduct section 1.4. Just as attorneys must disclose substantive GAI tool usage to clients, directors and managers have the same obligation. For example, directors and managers maintain a duty to disclose to the community whenever GAI is used to help perform association duties, such as GAI-assisted dictation software that produces meeting transcripts. Disclosing to the community of said use would create an expectation to have all meetings, as well as hearings, transcribed. In turn, transcripts would be responsive to formal records request under Civil Code section 5200 et seq. and become further discoverable in litigation. While GAI-assisted transcription may help document exactly what members say at meetings, the persistent use of GAI-assisted dictation software may burden the association more than help it.  

Further, Formal Opinion 512 also impacts attorneys’ fees under Model Rules of Professional Conduct section 1.5, stating that attorneys should bill only for reviewing GAI output and not simply using it. Directors and managers would be keen to review their engagement agreements and applicable vendor contracts for any terms requiring GAI disclosure and verification. Soon, more attorneys are going to be required to disclose GAI use in fee agreements, and whether the time spent learning or training to use GAI is billed.

Though GAI implicates several fiduciary duties, it also presents an opportunity for community associations to enhance their standard operating procedures. Implementation can start with straightforward, low-sensitive tasks such as a resident newsletter or a welcome flyer to build user confidence. Over time, directors and managers can develop prompting skills without simply pasting content into GAI software and thus inadvertently exposing sensitive information. (e.g., draft a concise, understandable [output] for residents about [topic]; change tone to courteous but firm; create a seasonal maintenance checklist for a community association with [type of amenities] and [X] as the budget).

There are free and very affordable, low-cost options for GAI software, many of which contain templates for infographics, FAQs, or meeting slides. As automated usage grows, associations may need to budget for upgraded versions of software, so long as the cost is justified by work product. At a higher budget tier, and with guidance from legal counsel and an Artificial Intelligence Governance professional, chatbots can be designed and integrated to field association duties when managers are off the clock, such as maintenance requests. Using predictive analytics, directors or managers with business backgrounds may be able to utilize GAI to forecast maintenance and other financial needs when completing reserve studies.

Whether drafting documents, managing communications, or analyzing data, the accessibility of GAI to streamline tasks is ever-present. With the right knowledge and discipline, directors and managers can appropriately engage with GAI to make protocol more efficient, creative, and tailored to their members. Despite all that GAI can do, only humans can build communities.

From Proposal to Policy: Navigating the Twenty-Eight-Day Review and Comment Period

Victoria R. Minor, Esq.

Attorney

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Practices: Community Association Counsel 

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Regularly reviewing and updating community rules and policies is one of the most effective ways a community association can promote clarity, consistency, and harmony within the association.  Over time, laws evolve, community needs shift, and previously well-intended rules may become outdated or impractical.  By proactively evaluating their operating procedures, boards can ensure their associations’ rules and policies remain legally compliant, reflect current best practices, and continue to support their communities’ long-term goals.

With that in mind, understanding the statutory process for adopting or amending common interest development association rules and policies is critical for boards to ensure effective and compliant governance.

California Civil Code section 4360 grants members of  an association a twenty-eight (28) day period to review and comment on most rules and rule amendments prior to their adoption.  This means, before  a board can formally vote to adopt a proposed operating rule or proposed policy, the board must first allow the members to review the proposed rule or policy and provide their questions and/or comments to the board.  

To begin this process, the board must provide written notice of the proposed rule change to all members at least twenty-eight (28) days before the date of the meeting whereat the board will consider and vote on the proposed rule or policy.  This notice must include the text of the proposed rule/policy, an explanation of the purpose and effect of the proposed rule/policy and the date, time, and location of the meeting whereat the board will consider and vote on the proposed rule/policy.  During this twenty-eight (28) day period, the members may review the proposed rule/policy and submit their comments on the proposed rule/policy to the board for its consideration.  

When considering comments received from the members, the board should keep in mind that while it must review and consider all comments received, it is not required by law to revise the proposed rule or policy in direct response to comments received.  Unless, of course, the comments identify aspects of the rule that would make the proposed rule/policy invalid or unenforceable, as further detailed in Civil Code section 4350.  For example, if the board receives a comment from a member identifying some aspect of the rule/policy that would conflict with governing law or the association’s governing documents, the board must revise the rule/policy to address this conflict.  Otherwise, after considering all comments received from the membership at an open board meeting, a board may choose to move forward with the proposed rule or policy as originally drafted.

After the twenty-eight (28) day comment period comes to a close, the board may vote to formally adopt the rule at an open board meeting.  Once the board has formally adopted a rule/policy, the board must provide the members with general notice of the rule change within fifteen (15) days after making the rule change.

Keep in mind that if your association’s governing documents require a longer than twenty-eight (28) day comment period, that longer period of time may apply despite the twenty-eight (28) day time period stated in Civil Code section 4360(a).  When considering adopting or amending a new rule or policy, it is recommended the board consult with the association’s legal counsel to ensure compliance with the above-mentioned statutory requirements and the association’s governing documents.  

Don’t Get Stuck with the Bill: Protect Your Association from Mechanics Liens

Jacquelyn E. Quinn, Esq.

Senior Attorney

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Practices: Community Association Counsel | Commercial CID

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A mechanics lien is a legal claim that contractors, subcontractors, laborers, or material suppliers can file against a property when they are not paid for work or materials provided. Typically, any person who works on the property under a contract—whether directly with the association or through a general contractor (i.e., material supplier)—may have lien rights. In California, this right is protected by statute to ensure that those who contribute to property improvements are compensated.

For community associations, mechanics liens can pose serious risks, especially when work is performed on common areas. A lien on the common area can impact and even prevent owners from selling or refinancing their properties. Even if the association itself has paid its direct contractor, a material supplier who is unpaid may still assert a lien against the common area property or, in some cases, against the individual owner’s separate property. Because of this, an association must take proactive measures to prevent liens from arising and to minimize exposure if one is filed.

Steps an Association Can Take to Protect Itself from Mechanics Liens

      1. Use Written Contracts with Clear Payment Terms:
        Every project, no matter how small, should be governed by a written contract. The written contract should include provisions that specify payment schedules, require lien releases before payments are issued, and require the contractor to indemnify the association and its members against liens that may be filed. The contract should also require the contractor to comply with all lien laws and to ensure that all subcontractors and suppliers are timely paid.
      2. Obtain and Verify Preliminary Notices:
        Any party supplying labor or materials for a project that is not in direct contract with the association must first serve a preliminary notice (often within 20 days of starting work), which informs the property owner that the subcontractor or supplier has provided, or will provide, goods and services to the property and could file a lien claim if they are not paid. If subcontractors and suppliers don’t provide the association with the notice, they lose the right to file a lien.

        An association should carefully keep track of all preliminary notices received. Oftentimes, however, preliminary notices are sent to the address on file for the association with the Secretary of State, which may be management’s primary office, not on site at the association. Therefore, the association may also wish to request a list of all parties supplying labor or materials to the project from the contractor. This allows the association to verify that each listed entity receives payment or provides a lien release before issuing progress or final payment to the contractor.

      3. Require Conditional and Unconditional Lien Releases Before Making Any Payment:
        Never make a progress or final payment without first obtaining the appropriate lien release(s) from the contractor and all known subcontractors and suppliers.
      4. Use Joint Checks When Appropriate:
        Issuing joint checks that are made payable to both the general contractor and subcontractor or supplier when a contractor has not submitted an unconditional lien release can help ensure that funds reach all parties with lien rights and reduce the risk of unpaid claims that can result in liens being filed against association property.
      5. Monitor Contractor Bonding and Insurance:
        When hiring for large projects, associations might consider requiring contractors provide a payment bond. A payment bond ensures that subcontractors and suppliers are paid, even if the general contractor fails to do so.
      6. Act Promptly if a Lien is Recorded:
        If a lien is filed, an association should consult with its legal counsel immediately. In many cases, the lien can be released by recording a release bond or by demonstrating that proper payments and releases were made. Quick action can prevent escalation and protect the association and its members’ interests. Please also note that Civil Code Section 4620, requires an association to provide individual notice to its members within 60 days of being served with a claim of lien for work performed on the common area.

Mechanics liens can create significant financial and administrative burdens for associations, even when the association has acted in good faith. By maintaining strong contractual safeguards, tracking preliminary notices, and always obtaining applicable lien releases before issuing a payment, an association can greatly reduce the likelihood of a lien being filed against its property.

Codes of Conduct for Association Volunteers

Emily A. Long, Esq.

Coachella Valley Office Managing Shareholder

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Practices: Community Association Counsel | Civil Litigation

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Generally, board members of common interest developments are volunteers dedicating their time, skills and energy to serve the communities within which they live. Indeed, without these director volunteers, community associations would be unable to properly function. Similarly, committee members are volunteers who work on specific projects within a community. Often, committee work is a valuable first experience which can entice a member to become more involved and to eventually run for the board. However, there is a steep learning curve upon entering the world of association governance.

In order to help board and committee members understand the association’s expectations for service, codes of conduct can be particularly helpful.  Not only do codes of conduct codify association expectations, they can also serve to educate board and committee members and help minimize association liability.  Boards might therefore consider adopting codes of conduct that cover the following topics, among others:

        • Prohibiting the acceptance of any gift, gratuity, favor, entertainment, loan, or any other item of monetary value by a board or committee member from a person who is seeking to obtain a contractual or other business or financial relationship with the association.
        • Clarifying that board and committee members may not engage in any writing, publishing, or speech that defames any other member of the board, committee, employee, or resident of the community.
        • Establishing that board and committee members may not knowingly misrepresent facts to the residents for the sole purpose of advancing a personal cause or influencing the residents.
        • Prohibiting board members from discussing sensitive and confidential matters discussed in executive session, outside of executive session, or with anyone who is not on the board (with the exception of management and association counsel).
        • Prohibiting board or committee members from seeking to have a contract implemented that has not been duly approved by the board.
        • Prohibiting board or committee member interference with an association contractor performing work.
        • Clarifying that board and committee members may not harass, threaten, or attempt through any means to control, instill fear or discriminate against any member of the Association, management company, service provider, or community resident.
        • Preventing interference by board and committee members with the system of management established by the board as a whole and the management company.
        • Reminding board members that they must operate as a board and do not have any individual authority unless it is specifically granted to them in writing by the board or the Association’s governing documents.

Often, codes of conduct may be adopted as rules of procedure by way of approval by the board at an open session meeting, rather than by following the rulemaking procedures spelled out in Civil Code section 4360. However, we encourage you to first speak with your association’s legal counsel to review your association’s governing documents and discuss your community’s particular needs prior to adopting such rules.

Enforceability of these codes of conduct is another important issue to consider when preparing draft rules. It is recommended that any code of conduct specifically list the consequences for a violation of the code of conduct.  Reasonable penalties for violation might include: public or private censure by the board, removal of an officer title, and/or removal from committee service by the board.  It is unlikely that violation of a code of conduct may result in unilateral removal of a board member by the board, but speak with your association counsel on this issue.

Is My Mic On? Concerns Surrounding Recording Board Meetings

Rhonda R. Goldblatt, Esq.

Senior Attorney

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Practice: Community Association Counsel

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Is My Mic On? Concerns Surrounding Recording Board Meetings

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.