Governor Gavin Newsom proclaimed a State of Emergency in California as a result of the threat of COVID-19 on March 4, 2020. Much has happened since then, but we thankfully seem to be approaching the end of the pandemic. California officials reported one hundred thirty confirmed cases in California per 100k of COVID-19 on May 24, 2021, down from a peak of twenty-eight thousand, five hundred fifty confirmed cases in California per 100k on January 9, 2021 (https://covid19.ca.gov/state-dashboard/). The State also reported that as of May 26, 2021, 49.7% of California’s population has been fully vaccinated, with over six million available doses on hand (https://covid19.ca.gov/vaccination-progress-data/).
Public health restrictions are loosening as a result of these heartening statistics. The State announced that it will lift capacity and distancing restrictions for most businesses and activities on June 15, 2021 (https://covid19.ca.gov/safer-economy/).
As California reopens, community associations are left to navigate the transition once again. This brings to mind one question in particular: are community associations required to resume in-person board meetings? Or can they continue to meet remotely?
Many associations transitioned to remote board meetings during the pandemic, for good reason. Federal, State and local public health authorities either prohibited or strongly recommended against gatherings. Community associations were understandably concerned about the potential liability associated with someone contracting COVID-19 at a board meeting. Remote meetings, supported by a number of different platforms like Zoom, Microsoft Teams and more, also offered a number of conveniences. Participants were able to log in from the safety of their own homes. Disruptive members could be muted or removed. Just as many people discovered the benefits of working from home during the pandemic, many associations similarly discovered the benefits of remote board meetings, and would like to keep to that routine.
The Open Meeting Act (“Act”) does not address this specific issue, mainly because the Act was not drafted with the pandemic in mind. The Act contemplates in-person meetings. For example, Civil Code section 4925(a) states “[a]ny member may attend board meetings, except when the board adjourns to” or meets solely in executive session. While the Act authorizes teleconference meetings, it still requires an association to provide a physical location where a member can observe the proceedings. Specifically, Civil Code section 4090(b) states that any notice of an open, teleconference board meeting must “identify at least one physical location so that members of the association may attend, and at least one director or a person designated by the board shall be present at that location. Participation by directors in a teleconference meeting constitutes presence at that meeting as long as all directors participating are able to hear one another, as well as members of the association speaking on matters before the board.”
For the time being, associations should aim to comply with current public health regulations regarding gatherings. Until June 15, 2021, the State’s tier system is still in place, which prescribes guidance regarding gatherings depending on the COVID-19 statistics within specific counties. Local jurisdictions may also impose stricter regulations with respect to gatherings.
However, once the State reopens on June 15, 2021, and the pandemic continues to (hopefully) abate, it will likely become more difficult for associations to justify noncompliance with the Act. Associations may continue to meet remotely, over teleconference, but will likely need to designate a physical location per Civil Code section 4090. Associations should make sure to comply with any applicable COVID-19 restrictions when either hosting an in-person board meeting or offering members a physical location to observe a board meeting per Civil Code section 4090.
As we grapple with these questions, a solution might thankfully be coming down the pike. California State Senator Dave Min recently introduced Senate Bill 391, which, if chaptered, would add section 5450 to the Civil Code. Proposed Section 5450(b) would allow a board meeting to be conducted entirely by teleconference, without any physical location for the attendance of any director or member, as long as certain conditions are satisfied. Section 5450 would apply in the event of a state of emergency proclaimed by the State Governor under Government Code section 8625. This would allow associations to avoid the strictures of Civil Code section 4090 as long as a state of emergency is declared in California. This would, in turn, give community associations a little more time to transition to life after the pandemic.
Of course, it would be useful if the legislature passed legislation authorizing associations to conduct entirely remote board meetings at any time, whether or not a state of emergency exists. That would be one step forward in ushering the community association world into the digital age. One can only dream!
Please contact us or your community association counsel for any specific advice on this topic.