Should Individuals be Allowed to Record HOA Board Meetings?
Drama! As the meeting starts the Directors and manager notice an owner pull out a handheld digital recorder and push the start button. The owner is a longtime critic of the Board and manager. This action is viewed as an attempt to intimidate the Board. The owner is told to turn it off and put it away. A heated exchange follows and the owner storms out. The next day flyers are posted around the complex announcing that the Board is conducting secret meetings and refuses to permit recordings of their meetings at which tens of thousands of dollars owners’ money is spent. Many owners recognize the complainer as a perpetual gadfly and ignore the flyer. However, some other owners have no idea what is going on but wonder why the Board refuses to permit a recording if they have nothing to hide. Confidence in the integrity of the Board begins to erode.
Discussing people’s gut level feelings about the “right” to record meetings may equally divide even the calmest group of owners. One the one side, owners feel that in this day and age everything a Board does should be open and transparent. Many government proceedings are recorded and sometimes broadcast. Why shouldn’t a recording be available for someone who cares enough to monitor what is going on? If the Directors have nothing to hide, what’s the problem?
On the other side of the issue are those who view the recorder as a tool of intimidation. It permits sound bites to be taken out of context and used to promote anti-Board agendas. Even if an owner never replays the recording, there is heightened credibility when the owner proclaims: “That isn’t what happened. This is what happened…… I know because I was there and I have a recording!” Recordings are often used by owners to argue for changes to even the best kept minutes. Additionally, most directors live with a level of anxiety that something they do will end up in litigation. They may hesitate to fully participate in discussions if they fear their words may come back to haunt them. A recorder can have a very real chilling effect on debate over important issues.
Before your Board ends up facing the challenge of deciding which way to go, it is wise to objectively consider some of the pros, cons and practicalities of Board meeting recordings.
Recording Not Illegal
State laws vary, but in California, Penal Code Section 632 makes it a crime to record confidential conversations without the other person’s consent. By definition open meetings are not confidential.
One can legitimately argue that the Board has authority to control the process of its meetings. Logically this includes whether or not recordings will be permitted. But why argue? Is there authority in the Open Meeting Act which permits recording? No. Is there authority in the Association’s Governing Documents? Maybe. It’s worth looking to be sure. Few Bylaws refer to recordings and those that do typically permit it only with the approval of the Board. If your Bylaws do not have such a reference, put it in during the next update. If they are silent, consider adopting a policy before the next controversy.
Who records, when it is done and what the purpose is makes a big difference. As a general proposition it makes sense to set the general rule as “no” unless approved by the Board. Then the Board can selectively get the benefits of the tool and decrease the potential for downside abuses.
Changes in Technology
In days past, a person who pulled out a tape recorder and placed it in the open was often making a hostile gesture. It was meant to intimidate and disrupt the proceedings. Presently, it is likely that everyone in the room has a cell phone and iPad or other tablet with excellent recording capability. It may be difficult or impossible to tell if someone is making a recording.
Times change. Now the person recording with a cell phone or tablet is just as likely to be mild- mannered and unobtrusive as one with an overt agenda. If the meeting is not being disrupted, how does the Board enforce a restriction? Threaten a fine? Offend a well-meaning, interested owner? Move the meeting? Attempt to physically eject the person? In most instances the effort to enforce will appear heavy-handed. The person who wanted to record a part of the meeting will have the sympathy of some other owners (present or not) who have no idea what the underlying background may be. The issue can quickly lead to the perception of a power-hungry Board that wants to operate in secret.
High Tech Tools
A variety of “apps” are available to record and take notes using cell phones and tablets. The most powerful tools target students who use them in lecture halls. The dozen or more that are very popular, include Notability, AudioNote and Penultimate. Meeting-based note taking apps permit handwritten notes (on a tablet with stylus), type written notes, audio recording linked within the document and integration of outside documents including photos and pdf’s. Handouts distributed at the meeting can be scanned as pdf’s using apps such as JotNot. Photos taken at the meeting can be opened into note pages of these apps. There are a growing number of managers and Board secretaries who are using these tools to make their lives easier. This use is also blurring the line of when a recording is acceptable and when not.
If a Director or manager records an open meeting of the Board, sooner or later an owner will ask for a copy, vaguely referring to Davis-Stirling member rights to corporate records. The Act does not refer to recordings so there is no automatic right of member access. However unless you want a recording to be an accessible corporate record, care should be taken to make clear any recording is personal to an individual and/or for use in preparing minutes (and may be erased after adoption of the minutes). Such a directed use may be noted in the Board permission to record the meeting.
Deterring Unruly Behavior
If the Board has a challenge with overly dramatic owners disrupting the meeting or acting out, consider setting up a video recorder in the corner which in part faces the audience. Sometimes a video recorder will deter attendees from aggressive and disruptive conduct. If it fails to do so, it may become a record for sanctions or even use in procuring a restraining order.
Minute Taker Supplement
If a meeting participant is also taking minutes, the burden of transcribing can preoccupy that person who should be more actively involved in the collaboration. Some secretaries and managers use a recording as a tool to assist in expanding and verifying details that go into draft minutes. After the formal minutes are approved, the recording is erased or deleted. If an attendee of the meeting is known or suspected to have also recorded the meeting, the “official” recording might be kept to counter any subsequent claims or accusations.
The Clicker Style
Some minute takers have the recorder at hand and only turn it on only after someone is prepared to state a motion. This emphasizes the importance of a clearly worded motion. It is then turned off and the minutes may indicate that there was discussion and record how the votes were cast.
As a general proposition it is wise that if an owner is permitted to record a meeting, the Board should also make a recording so it has control over a copy. An alternative is to prohibit the owner from recording but have the secretary or manager record the proceedings. Then a copy can be made available to owners who request it.
Put It All Out There
Particularly in large associations, Boards may record entire meetings and make the recordings available in streaming (live) or downloadable formats. Few owners will access the electronic information, but knowing they could may generally boost owner confidence in the integrity of the Board process.
An ideal time to address the subject is when the Bylaws are being updated. A typical provision says no recording, unless the person in charge of the meeting consents. That provides the most flexibility and greatest number of options to fit the circumstances. Until then, consider rules or a policy addressing meeting processes generally and include Board authority to control recordings in that context. Remember that any such rule or policy will be subject to member review prior to adoption (CC 4360). All too often recording at meetings becomes an issue in the midst of a greater substantive issue being addressed by the community. As a secondary issue it can simultaneously distract from the primary issue(s) and undermine owner confidence in the integrity of the Board process. Being proactive on the use of recording meetings before there is a problem makes sense.
Adapted from the article, “Electronic Recordings During Board Meetings: Yay or Nay?” by Glenn H. Youngling, PLC.