Senate Bill 391 was passed in response to the state and federal emergency declarations and prohibitions on in-person gatherings which forced most associations to move their board and membership meetings to virtual platforms in 2020. Over a year-and-a-half after the Covid-19 pandemic first caused us to change our ways of life and doing business, virtual meetings have become commonplace for many community associations.
SB 391 amends provisions of the Davis-Stirling Act to permit associations to hold board and membership meetings virtually, without designating a physical location where members may attend, if gathering is unsafe or impossible because the common interest development is in an area affected by a federal, state, or local emergency. The bill was signed by Governor Newsom on September 23, 2021, as an urgency statue, meaning that it took effect immediately upon signing.
Existing laws allow board meetings to be held by teleconference so long as the meeting notice designates at least one physical location where a director or person designated by the board shall be present and where members may attend and listen to or observe the proceedings. SB 391 adds new Civil Code section 5450 to the Davis-Stirling Act. This section only applies if gathering in person is unsafe or impossible because of a local, state, or federal state of emergency, and permits associations and boards to meet by teleconference, without designating a physical location, during such times. In order to hold a teleconference meeting during a state of emergency under Section 5450, an association must satisfy the following conditions:
- Initial Notice. Notice of the first meeting that is conducted under Section 5450 for a particular disaster or emergency affecting the association must be delivered to members by individual delivery. Individual delivery includes by first-class, registered, certified or express mail, or overnight delivery, and by email, fax, or other electronic means, if the recipient has consented in writing or by email to that method of delivery.
- Notice Content. In addition to other required content, notices for each virtual meeting conducted under Section 5450 must include: (i) clear technical instructions on how to participate by teleconference; (ii) the telephone number and email address of a person who can provide technical assistance with the teleconference process, both before and during the meeting; and (iii) a reminder that every member may request individual delivery of meeting notices, with instructions on how to do so.
- Participation. Every director and member must have the same ability to participate in the meeting that would exist if the meeting were held in person. This means that directors must be able to discuss, deliberate, and vote on motions before the board, and members must be able to listen to or observe the meeting proceedings and address the board during homeowner forum.
- Director Voting. Any vote of the directors must be conducted by a roll call vote.
- Telephonic Attendance. Any person who is entitled to participate in the meeting must be given the option of participating by telephone.
If, as a result of the disaster or emergency, mail delivery or retrieval is not possible at any association onsite address, and the member has no other address on file with the association, the association must send the initial notice referenced above to any email address provided to the association by that member.
With respect to holding membership meetings at which ballots will be counted during a state of emergency or disaster, Section 5450 requires that: (i) the meeting at which ballots are to be counted and tabulated is conducted by video conference, and (ii) the camera is placed in a location such that members can witness the inspector of election counting and tabulating the votes.
Finally, Section 5450 provides that the same remedies for violations of the Open Meeting Act contained in the Civil Code shall apply to violations of the virtual meeting procedures contained in new Section 5450.
While many associations have been and are continuing to hold virtual meetings during the pandemic, most will not have complied with the specific requirements of Section 5450. Accordingly, boards should consult association legal counsel in order to confirm that the requisite policies, practices, and notices required have been put into place in order for boards to continue to meet virtually during the ongoing state of emergency. Please don’t hesitate to contact us for assistance in this regard.
Republished from OC View with permission of CAI Orange County.
