By Robert M. DeNichilo, Esq., CCAL

With schools cancelling classes, organizations cancelling events, and today’s announcement from California Governor Gavin Newsom that California’s public health officials have issued a new policy on public gatherings to help stop the spread of the coronavirus (COVID-19), many boards are wondering if they can hold board meetings electronically. The answer is yes.
If a board is concerned about meeting in person, meeting electronically is a good option. The California Corporations code allows board members to appear at meetings electronically. Board members can attend any board meeting electronically by telephone or video, so long as they can hear all other board members, and all other board members can hear all other directors not physically present at the meeting. If all directors attend an open meeting via electronic means, the notice of the meeting must identify at least one physical location where members can attend, and have at least one board member, or someone designated by the board, who shall be present at that location. This means, at least one speakerphone must be at the designated location so members can hear the meeting. This also allows for members to address the board during the homeowner forum portion of the meeting.

Alternatively, there are many tools that can make an electronic meeting more efficient. Services such as Skype, Facetime, Google Hangouts, all offer free video conferencing tools where board members can see and hear each other. Other video services, including Zoom or GoToMeeting, even offer screen sharing so that those on the video conference can all see the same screen at the same time. Video conferences are a real benefit for attendees to showcase addendum items such as proposals, photographs, or board packets. Requirements may include a computer with a camera and a microphone, a smartphone or tablet. Some additional tools and services may be available for a small fee.

The next question directors may ask, is whether the homeowners are also entitled to attend electronically? There is no legal right in California for members to attend a meeting electronically. Under the Davis-Stirling Act community association board meetings are open to members, and a public live stream would make it impossible to know who is viewing the meeting. While you may know the name of the person who logs in, there is no way to know who else may be viewing with them. Live streaming a board meeting via YouTube or Facebook live might be an option, but it would also open the meeting up to the public, and board meetings are not open to the public. It would also make homeowner forum very difficult. Alternatively, a computer with a webcam and microphone can be set up at the location designated for the meeting where members can come in and watch and listen to the board. This would also allow for homeowner forum to be conducted, which would still be required even if the meeting is being conducted electronically.

Directors concerned with meeting in person should consider such electronic tools so that the business of the association can continue. Even in times of pandemic, directors owe a fiduciary duty to the association and must ensure the business of the association is conducted. Electronic meetings are a good option anytime a board is either unable to or concerned about meeting in person.

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Written by Robert M. DeNichilo

Robert M. DeNichilo, Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner at Richardson|Ober|DeNichilo.