The disruption has become apparent and severe. However, we must examine the “silver linings” and “play with the cards we have been dealt” – so to speak – in order to preserve the integrity of our communities and functioning of same. The business that needed to be done before we all retreated to our homes to be safe still needs to get done and the longer boards wait to do that business, the more likely it is that there will be complications. Below are a few ideas that board members should consider moving forward in the face of this pandemic that may last for months.
1. Meetings. While in-person meetings should be avoided, associations may still be able to conduct meetings via conference call and/or videoconference (e.g., Zoom). The Davis-Stirling Act sets out a procedure for telephone conference meetings, but the Code requires that someone be at a physical location where the owners can listen to the call via speakerphone and participate during open forum. We believe that the ongoing pandemic would warrant a substantial compliance approach. That is, associations can conduct the meeting via telephone or video conference and attempt to comply with the applicable statutes, as much as possible, while at the same time complying with the State and City social distancing orders now in effect. This way, associations may still conduct business and hold meetings so that the common area components continue to be maintained, insurance policies do not lapse, and other obligations like enforcement of the Governing Documents are met. In other words, California community associations can still function while the board members and management are at the same time complying with government mandated social distancing requirements.
Yes, some owners may object to the board conducting a meeting that does not strictly comply with the Civil Code. However, the reality is that what we are proposing meets the intent of the Civil Code as the owners are still being given the same opportunity to listen and speak to the board and they can do that from the safety of their home. We doubt that any judge would find the procedure inappropriate under all of the circumstances.
There are good examples to support our conclusion. Both the Los Angeles and San Francisco City Councils have reported that they will have the public watch their meetings from a remote location instead of being in a room with many other people. If cities can do this under the Brown Act, so can community associations under the Davis-Stirling Open Meeting Act.
And when the pandemic is over, there should be a push to get the legislature to consider amendments to the Davis-Stirling Act to allow for telephone and videoconference calls as the technology is readily available and easy to use.
2. Work from Home. On this same theme, community association managers can continue to service their clients by utilizing telephone or video-conferencing technology so that the social interaction can still be preserved to the greatest extent possible. We have been utilizing telephone conference technology for years to meet with boards rather than traveling to a board meeting. A videoconference can be conducted much the same way as an in-person meeting with the use of Zoom and other technologies that have really come a long way, are very easy to use and allow for the incorporation of slides, PowerPoint, virtual meeting rooms, and attachments during the videoconference. In some cases, holding meetings in this fashion can actually enable professionals, such as community managers, to work more efficiently and save drive time.
3. Modified COVID-19 Meeting Policy. In line with the concepts stated above, community association boards should consider adopting a temporary COVID-19 board meeting policy that implements the social distancing guidelines while at the same time substantially complying with the applicable provisions of the Open Meeting Act and other corporate requirements. The policy should be in effect until the social distancing requirements and restrictions are lifted. This is another area where the legislature needs to take action to amend the Act to allow boards more leeway during pandemics, fires, floods and the list goes on.
4. IDR/ADR/Due Process/Policy. As with other aspects of the functioning of a community association, Governing Document enforcement should not be ignored. While in-person “meet and confers” or violation hearings may not be possible presently, associations may still send violation notices and conduct these non-judicial enforcement procedures via videoconferencing and/or telephone conference call in an attempt to resolve the dispute amicably. Association boards should consider implementing a modified enforcement policy that allows for enforcement that complies with the State and local social distancing requirements.
As mediations via Zoom videoconferencing are becoming more popular and a necessity during this pandemic, we can tell you from experience, the technology works great for mediations. We envision attending mediations via video conferences when the pandemic has subsided as we have found there is no reduction in the interactions necessary to resolve a dispute.
We get it that many of you are shell shocked by all that we are having to deal with. We just want you to know that we are here for you, working remotely from our homes. Most importantly, you have business to conduct and there are ways that you can conduct that business without actually having to meet in person. If board members or community managers have questions regarding how to continue with operating their community associations during the COVID-19 pandemic, please contact our attorneys at SwedelsonGottlieb for advice regarding these and any other issues. And be sure to download the latest version of our COVID-19 Community Association Guidebook.
Stay in, stay healthy and stay safe. And if you have COVID-19 related questions, contact SwedelsonGottlieb at info@sghoalaw.com or 800-372-2207