Guest Blog by Clint Atherton
When COIVD-19 hit its initial peak in March of 2020, communities were forced to decide if they wanted to meet in person and potentially be exposed to the virus, or hold a meeting solely via teleconference/videoconference without providing a physical location allowing homeowners to listen and observe the meeting as required by Civil Code 4090(b). Most communities opted for the later, due to the potential risk of virus transmission. Initially, there was some trepidation in this brave new world of virtual meetings but as boards, managers and members became more familiar with technology, many found the meetings to flow better and have more member participation. In fact, for many associations, the virtual meeting was vastly superior to in person meetings.
Notwithstanding, this practice did not legally comply with the meeting requirements in the Davis-Stirling Common Interest Development Act. Eventually, in February 2021, Senator Min proposed SB 391, which would enable boards to meet without a physical location in areas impacted by a state of disaster or state of emergency. While it was initially hoped that associations would be able to dispense with the physical location requirement altogether (rather than just in a state disaster or emergency), this unfortunately did not occur.
SB 391 passed both the Senate and the Assembly and was signed into to law by the Governor on 09/23/2021. Typically bills become effective at the start of the following year, or later, once they are Chaptered by the Secretary of State. However, as we are all still dealing with the COVID-19 pandemic, this bill became effective immediately upon being chaptered.
What SB 391 Specifically Allows and Requires
SB 391 adds Civil Code Section 5450, which permits boards to meet without a physical location where gathering in person is unsafe or impossible because the association is located in an area affected by one or more of the following conditions:
(1) A state of disaster or emergency declared by the federal government.
(2) A state of emergency proclaimed by the Governor under Section 8625 of the Government Code.
(3) A local emergency proclaimed by a local governing body or official under Section 8630 of the Government Code.
This means that communities can hold board meetings virtually until the state of emergency is lifted.
However, there are very specific notice requirements that boards must follow in order to hold virtual meetings under the statute. The notice of each meeting that is to be held only via teleconference/ videoconference must include the following information (in addition to required content for meeting notices):
- A) Clear technical instructions on how to participate by teleconference.
(B) The telephone number and electronic mail address of a person who can provide technical assistance with the teleconference process, both before and during the meeting.
(C) A reminder that a member may request individual delivery of meeting notices, with instructions on how to do so.
The notice for the first meeting held under Civil Code Section 5450 must be delivered to members by individual delivery. Also, any person who is entitled to participate in the meeting must be given the option of doing so via telephone.
Once you have taken care of the statutory notices and get to the actual holding of the meeting, this new potion of the Civil Code also requires a roll call vote for any vote of the board of directors.
Lastly, there are some other provisions in the bill that address what happens if you cannot provide individual notice via mail delivery due to the nature of the emergency order and provide additional requirements for holding meetings where ballots are tabulated. You can read more about that and view the entire bill here.
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB391 (Add link)
Although we were not able to get teleconference meetings passed for use in non-emergency times, SB 391 was a more than positive step in the right direction in making our meetings more accessible for members who are not able to attend in person or prefer virtual meetings.
As we move forward and in person meetings resume, I would imagine that we will see “hybrid” meetings. These meetings would offer both an in person and virtual option to encourage participation by members who cannot attend in person. Ultimately, it is my hope that the legislature will amend this portion of the Civil Code to give associations the option to hold all meetings virtually regardless if there is a state of emergency if that is what associations finds most beneficial. In order to make this happen, I would encourage all managers and board members to track participation in their virtual meetings, particularly those that manage senior communities.
With this information you can work with your CAI Legislative Support Committees and your local legislators to inform them that this new way of meeting increases transparency and member involvement for communities.
Clint Atherton first began working with common interest developments in Orange County in 2001. He later became active in the CAI Orange County Chapter serving on the Program Committees, Legislative Support Committee and was elected to serve on their Board in 2013. Mr. Atherton is currently the onsite manager of Sun City Palm Desert and serves on the CAI Coachella Valley Chapter’s Professional Managers Committee, Legislative Support Committee, and is the Chapter’s delegate to the California Legislative Action Committee. In addition, he serves on the chapter’s Board of Directors and is the incoming president for 2022.
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