Published in the ECHO Journal, September 2013
Meetings of the Board of Directors are always important to the function of a homeowners association. Board meetings not only provide an opportunity for the Board members to congregate, but under the Open Meeting Act, board meetings are the only time (outside of emergency meetings) during which business may be conducted. As such, the time designated for this meeting can effectively decide the course and success of an association.
Accordingly, many members find attendance at and participation in, Board meetings as integral to membership. Hearing about the various issues affecting the association and the Board members’ opinions on the same is crucial to maintaining transparency in the association’s business dealings. As many decisions concern expenditure of the association’s funds, members also view open Board meetings as an important “check and balance” on the directors’ use of the membership’s money.
The method by which homeowners can engage in the Board meeting is addressed in California Civil Code Section 1363.05 (known as the Open Meeting Act), which specifically recognizes the right of homeowners to speak at Board Meetings. Subsection (h) reads: “The board of directors of the association shall permit any member of the association to speak at any meeting of the association or the board of directors, except for meetings of the board held in executive session.” As such, Board meetings should always preserve a time, known as “Homeowners’ Forum” (or “Open Forum”), during which homeowners can express their opinions on various issues concerning the Association.
There is no restriction on what a member can discuss during such Homeowners’ Forum. Accordingly, a member may choose to discuss pending business or an issue that was discussed by the Board earlier in the meeting. A member may also choose to discuss new business or potential issues which the Association may be facing. It is also appropriate for a member to express a personal concern or issue that is affecting just that homeowner. Although the Board cannot necessarily respond to the homeowner’s comment in substance, as long as the comment addresses an association issue (not just a non-specific unrelated grievance), the homeowner should be given an opportunity to speak.
However, the Civil Code makes clear that a homeowner’s opportunity to speak can be restricted in one manner – time. Subsection (h) states: “[a] reasonable time limit for all members of the association to speak to the board of directors or before a meeting of the association shall be established by the board of directors.” The reasons behind this singular restriction are numerous.
A time limit safeguards the right of other homeowners to speak, as well. We can all recollect being in a class, seminar or even a discussion with friends, where one person monopolizes the time and conversation without giving anyone else an opportunity to speak or respond. Not only do such individuals frustrate those around them, but sometimes, it results in apathy or “tuning out” of the people waiting to speak. Homeowners’ Forum is intended for the entire membership – not just one or two members who want to dominate the conversation.
Reasonable time limits also encourage (if not force), a homeowner to be concise and specific during their comments. Again, with no time limitation, most individuals will find things to say, often repeating themselves, while not adding anything of value to the conversation. Time limits make a homeowner aware that they need to focus their statements on the important issue and what they want – i.e. the bottom line – rather than allowing the individual to editorialize without restraint.
Time limits ensure that Board meetings move forward efficiently. Especially for larger associations and/or associations with vocal memberships, time limits allow meetings to proceed with the business of the association. The purpose of the Homeowners’ Forum is to ensure that members have a platform on which to express their thoughts, but that cannot be a substitute for other agenda items and the important decisions to be made by the Board. While Homeowners’ Forum is an integral and required part of any Board Meeting, reasonable time restrictions are a tool Boards may use to ensure that the purpose behind such Forum is preserved.
By Kevin C. Canty, partner at Angius & Terry LLP.