Open Forum: Drudge or Jewel?

Open Forum: Drudge or Jewel?

The “Open Meeting Act” (Civil Code Sections 4900-4955), requires at Section 4925(b) that all membership meetings and board meetings have a time set aside for members to speak. This time is often called “open forum.” In open forum, a member can speak on topics on or off the agenda. Some associations avoid open forum and others have unrestricted open forum, but both extremes are unhealthy. The time for homeowners to contribute to the meeting is not during deliberations – that is the board’s role – but during open forum. Open forum is an important element of a healthy association. If members have a fair opportunity to address an attentive board, they will have a more positive view of their association, and directors will be better connected with the community they serve. Consider these guidelines: Directors: Establish reasonable time limits to protect participation by all. Most associations allow 2 or 3 minutes per speaker. Have a timekeeper and consider giving members a “30 second warning” to help them. Do not interrupt, argue with, or respond to the speakers during their time. Listen to the speakers and take notes. Show attentiveness to their concerns – you just might learn something new. Do not record open forum comments in the meeting minutes – comments are not actions. Some speakers may disagree with the board or criticize. Deal with it — you are in a position of service, and they might sometimes be right! After open forum concludes, the chair should inquire if any item from open forum should be referred to a committee or management. If an answer to a question is...
Frozen Out Directors

Frozen Out Directors

Kelly, Our board established an executive committee consisting of three board members, excluding the two remaining board members, under Corporations Code Section 7212. Later, one of the non-executive committee board members sold their condominium and the executive committee appointed a replacement board member. There are four remaining board members; three on the executive committee and one who is not on the executive committee. Since the Corporations Code prohibits the executive committee from “filling of vacancies on the board or in any committee which has the authority of the board” per Section 7212(a)(2), can the action be reversed, changed or modified, or nullified? What is the appropriate venue for resolution, short of filing an action in court? Best Regards, R.D., Palm Desert Dear R.D., I am skeptical of so-called “executive committees.” In your situation, it appears the majority is freezing out the other two directors and doing business in secret. If a board majority meets on HOA business, whether calling it an executive committee, “working meeting,” or coffee klatch, Civil Code 4090 says it is a “board meeting” and its activities must be in the open, with advance agenda notice to members. The committee’s decisions made in violation of the Open Meeting Act could be considered illegal and outside the association’s corporate process. Yes, under Corporations Code 7212, the executive committee is exceeding its power. However, and more importantly, the majority approach violates the Open Meeting Act, rendering all of its actions subject to challenge. Rather than expensive legal action to challenge this exclusive group of directors, perhaps the homeowners would rather elect directors who will properly serve and who...
When the Disruptor is a Director!

When the Disruptor is a Director!

Dear Mr. Richardson, I’m currently on my HOA board. The president is constantly rude, slandering other board members, and basically being disrespectful. I am wondering what course of action a fellow board member has to get him under control. This is really uncomfortable and a hard issue to deal with and he is just being a tyrant. Any advice would be great. J.E, Rancho Cucamonga Dear Kelly, What can be done about a board member who repeatedly shouts down speakers during open forum? R.M., Cardiff By The Sea Dear J.E. and R.M., Directors set an example to the community regarding decorum. Poorly behaved directors not only embarrass themselves (usually without realizing it) but also can create the impression that such boorish behavior in meetings is acceptable and accepted. Mature and civil behavior by members of the board should be expected as a given. However, I have seen very large boards completely stymied by a rude or belligerent director, as the bully wins because the other directors avoid “doing battle”. Unfortunately, this is a battle which is necessary for everyone, including the misbehaving director. When anyone disrupts the meeting, the first step should be a warning from the chair accompanied by a request that the disruptive person exercise some self-control. If that does not work, the next step would be a call from the chair for a motion of censure, in which the board expresses its disapproval of the disruptive behavior and asks the person to restrain themselves so that orderly deliberations can proceed. This motion will of course be reflected in the minutes, notifying the entire community that this...
Removed Presidents, The PUD Myth

Removed Presidents, The PUD Myth

Dear Mr. Richardson, The president of our HOA was recently removed as president (with no explanation and at an unposted meeting) but she is still on the board, referred to as director at large, with no duties. Someone said she is not eligible to vote in that capacity. Is that true? J.K., Murrieta Dear J.K., The president, as with any officer position within the board of directors, normally serves at the pleasure of the board, under Corporations Code 7213(b). Check your HOA bylaws to be sure. Usually there is one section for “board of directors” and a different section for “officers.” You probably will find that officers are appointed from within the board. So, one could be removed by the board from one’s officer position – but being removed from an officer position is different than being removed from the board. Normally after losing one’s officer position one is still a board member. The board does not need to state a reason for changing officers, because no “cause” is needed. However, changing officers should be accomplished during an open meeting with the minimum 4 days agenda notice. Some boards mistakenly consider this a “personnel” matter and so handle the decision in closed session. However, in this context, “personnel” means employees of the association. Thanks for your question, Kelly Kelly, I live in a PUD as I was told. Why do you say there is no such thing, and California has planned developments? B.K., Sun City  Good morning, In an earlier article you stated that California has only planned developments not PUDs. Our manager swears that we are a PUD....
Executive Session Misused?

Executive Session Misused?

Mr. Richardson, Members of our board mention discussions in executive session when they are discussing agenda items at board meetings. For instance, at a recent meeting the board tabled a matter relating to rules. The president said the matter would be discussed further in executive session. Also, three board members attend committee meetings. Two directors will be designated to participate with the committee and the third will not participate but just listen. What subjects are allowed under Davis-Stirling in executive session? Also, should a majority of the board be attending committee meetings, even if one of them does not participate? T.M., Canyon Lake Dear T.M., Closed session is only permissible under Civil Code 4935(a) to discuss a very few items: litigation, paid personnel, contract negotiations, disciplinary and common area damage hearings, hearings re delinquency payment plans, lien foreclosures (Civil Code 5705(c)) and requests for accommodation of disabilities (required by Fair Housing law to be kept confidential). Anything else must be handled in open session – period. When a board handles other topics in closed session it not only violates the Open Meeting Act (Civil 4900-4955) but also violates the members’ trust. As to committees, if a board majority attends a gathering in which association topics are discussed, that is a “board meeting” under Civil 4090(a). Even if the third director is silent, that committee meeting has become a board meeting and the Open Meeting Act applies. If a board majority needs to attend a committee’s meetings, why have the committee? Committees should support the board by helping share the load. When a majority of the board is attending anyway, then...