Q: I wanted to get further clarification regarding the new Civil Code Section 4926. My simple question, which relates to your recent Q&A article covering this topic, is: Does the board have sole discretion to decide that meetings will be solely telephonic/virtual?
My feeling is that such a decision should be put to vote of the entire association, not just five board members who may have less than credible motivations for choosing this approach. I tried to find the answer in the text of the new code but was unable, so I hope you can shed light on this question. — E.P., San Diego
Also see: Do We HAVE to Zoom, readers ask?
Q: I am a member of a board that has passed a rule that requires all board members to participate in board meetings in person. This rule seems to conflict with CA Corp Code 7211(e)(6), which allows board members to participate in board meetings remotely.
I have chosen not to participate in board meetings in person due to the harassing and bullying conduct exhibited toward me by several of the other board members.
Also see: Good news coming in 2024 — reduced quorums
I have been denied telephonic communications, so I am now not able to participate in board meetings because of this board rule.
I was told that in the legal hierarchy of statues and regulations, CA law has precedence over any board rules. Is the board rule regarding mandatory attendance at board meetings valid since it appears to conflict with the provisions of California Corporations Code 7211(e)(6)? — E.F., Laguna Niguel
A: Both of your concerns illustrate the various angles of the good and bad sides of this subject precisely.
Civil Code Section 4926 now allows boards to meet completely in virtual or telephonic mode, so long as certain notifications are announced to the members. It is the board’s decision whether to meet in virtual or telephonic format, not the membership at large. It is possible that an association membership could vote to amend their bylaws to specifically ban virtual meetings.
However, there are benefits of virtual participation to the members, which would be lost if meetings could only be physical.
Civil Code Section 4926 allows boards to meet purely virtually, and Section 4090(b) allows directors to participate in a meeting telephonically or virtually. These statutes are both permissive, and boards can decide whether to allow virtual or telephonic participation.
I think that a hybrid board meeting is the best option for all concerned, with the directors physically present. Directors are generally more engaged in the meeting when they are physically present, while allowing homeowners the option to attend in person or to watch the meeting online.
This requires a small expenditure by the HOA to obtain one of the many affordable wireless speaker devices – tablets, laptops, and cell phones do a horrible job of capturing the sound.
Most HOAs benefit from having written reasonable meeting rules fostering more mature meeting conduct and informing attendees about what to expect. Such rules could cover how the virtual element of the meeting is set up.
As communication with the members increases, communities typically become more cohesive and therefore governance is more stable. Hybrid board meetings are an excellent way of increasing communication with the membership and making the HOA more accessible to them.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com
