Question: How important, if any, is it when a board does not comply with a posting of an agenda four days prior to a board meeting. Is the only recourse to elect a new board and hope it will do a better job?
– BH, Alhambra
A: If the board of directors has not published an agenda for the public meeting of the board of directors at least four days before the meeting, article 4930 of the Civil Code prohibits the board from discussing or voting, to with the exception of a few rare exceptions. A board of directors acting without properly complying with the Open Meeting Act (which includes this law) risks having its actions overturned as an improper exercise of the business process. Members must demand transparency (and respect for the Open Meeting Act) from its board of directors.
Question: One director resigned and a special board meeting was called to vote on the replacement. Our board of directors is systematically divided, the resigning member being the majority. Obviously the special meeting is called so that the resigning member and the other two can approve their handpicked replacement. It seems that special meetings need to be called when there is an urgent matter that cannot wait for the next regular board meeting. There doesn’t seem to be any urgency here, just not wanting to wait. I would appreciate your thoughts.
– BD, ocean side
A: A special board meeting is not necessarily urgent, but any board meeting outside of the regularly scheduled meeting. Timely posted agendas are required for regular and special board meetings. Emergency meetings, requiring no notice to members and which can be arranged by e-mail, are governed by Article 4930 (d) (1) of the Civil Code, defining âurgencyâ as something reasonably unforeseen, which requires immediate attention. HOA legal counsel can help determine whether the articles allow a resigning director to vote for their replacement. However, even if the statutes allow it, the tactic could appear improper to the members. Instead of risking a backlash from members, consider holding a special member vote to fill the seat (and break the deadlock).
Question: Three members of our five-member board of directors have formed a secret alliance and are making decisions without consulting the other two directors (they even use the term âallianceâ when working together). They make decisions through an email network developed specifically for board issues, to the exclusion of the other two board members. They then set up a theater in meetings as the topics are officially voted on as they have already agreed behind closed doors. They have also organized secret conference calls during which council decisions are made. All general thoughts are highly appreciated.
– BN, San Diego
A: It is a terrible idea and exposes these allied administrators to personal liability. By violating the Open Meeting Act, they are disrespecting not only the law but also their fellow HOA members. Worse yet, their illegal secret meetings could lead to the actions of the board being called into question. Anytime a majority of the board meets to discuss the HOA – in person, over the phone or through a virtual meeting platform, or through a series of emails – this is a âMeeting of the board of directorsâ in accordance with article 4090 of the Civil Code.
Kelly G. Richardson CCAL is a member of the College of Community Association Lawyers and a partner of Richardson Ober DeNichilo LLP, a California law firm known for providing advice to community associations. Send your questions to [email protected]