Q: Our HOA board seldom complies with the various laws under the Davis-Stirling Act regulating HOAs in California. Our board seldom holds open board meetings that can be attended by us members. We never get to see the directors discuss the issues amongst themselves, or how they vote on the issues. Our board only holds what they call an HOA meeting near the end of each month, at which they basically tell us what has already been decided.
We understand “executive sessions” that boards hold for discussing and making decisions on confidential matters, but our board also conducts all routine business items in their executive sessions. What can we do to force our board to conduct open meetings for routine, non-confidential, business? — D.H., Apple Valley
A: Except for the very few items allowed in executive session by Civil Code 4935 and emergency decisions under Section 4930(d), all other board decisions must be made in an open meeting of the board of directors.
Boards refusing to comply with the Open Meeting Act risk their decisions being legally challenged as “ultra vires,” meaning outside the corporate powers. Worse, boards hiding their deliberations from the members destroy the trust of their neighbors in the HOA’s governance.
Still worse, boards knowingly violating legal requirements might even find their volunteer immunity and their insurance coverage is challenged.
Filing a lawsuit against such rogue boards may be emotionally satisfying, and judges might issue orders and even award attorney fees, but that doesn’t accomplish reform. At some point, enough homeowners will become disgusted with their board’s smoke-filled room decision-making that they will elect a new board. Elect a group of homeowners who will govern the HOA properly, in a legally compliant and trustworthy fashion.
Q: My HOA’s Bylaws provide as follows: “Any action required or permitted to be taken by the Board may be taken without a meeting, if all members of the Board consent in writing to the action…” As you know, this provision conflicts with several provisions of the Davis-Stirling Act, most notably Civil Code section 4910, which provides as follows: “(a) The board shall not take action on any item of business outside of a board meeting…”, and Civil Code section 4920, [requiring notice of board meetings]. I would appreciate it if you could address this issue. — E.H., San Diego
A: The language you cite is apparently from older bylaws, and is consistent with Corporations Code Section 7211(b), which allows mutual benefit corporation boards to take actions allowed by the bylaws by unanimous written consent.
However, another more specific law disallows such decisions by common interest developments, and that law is the Open Meeting Act (Civil Code 4900-4955).
Under the Open Meeting Act, only emergency decisions can be made outside of a board meeting. I would expect that bylaws written in the past 20 years would not provide for decisions by unanimous written consent, since that clearly violates the Open Meeting Act.
This is one of the hazards of older (or poorly drafted) governing documents, since they in many respects will not reflect current law. Hopefully your HOA has solid legal counsel to help alert your board about this and keep your HOA compliant.
Kelly G. Richardson CCAL 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. Send column questions to Kelly@roattorneys.com.