10:29:43:22 - 10:29:49:15 Unknown remember what your mom said. You can disagree, but don't be disagreeable. Yeah, right. Yeah, absolutely. And 10:29:49:15 - 10:29:57:13 Unknown Board members are just human. Plus board members and everybody else have a lot of emotional attachment to what's going on with the association. 10:29:57:13 - 10:30:15:13 Unknown It may be everybody's largest investment. That would be typical. So emotions do run high. But it's important to guide board members to conduct themselves in such a way that they can be respectful. 10:30:15:15 - 10:30:36:18 Unknown Welcome to the uncommon area where we're dedicated to reimagining HOS. We provide board members and managers with the resources to create uncommon communities where residents love their home and truly love where they live. 10:30:36:20 - 10:30:49:10 Unknown Welcome to the Uncommon Area. I am Matthew Holbrook, and in this episode I am joined by John McDowell of Fiore and Powers. And we are discussing the topic of board meetings. 10:30:49:10 - 10:30:52:17 Unknown What are the different types of board meetings and what are 10:30:52:19 - 10:31:03:04 Unknown notice requirements and agenda requirements, and how do we navigate board meetings effectively? And I know that it might sound like a little bit of a dry topic. 10:31:03:04 - 10:31:16:15 Unknown For those of you who have been board members or managers for a long time, but I think that we get into some really interesting things and some nuanced things, and I'm confident that for most of you, they will be elements here where you will 10:31:16:17 - 10:31:22:19 Unknown learning something new about board meetings for homeowners associations and condo associations. 10:31:22:19 - 10:31:28:08 Unknown So keep watching or listening to this episode and I think you'll find it really beneficial. 10:31:28:10 - 10:31:31:03 Unknown John, thank you so much for joining us here. In the end, common area. 10:31:31:06 - 10:31:34:05 Unknown Thank you very much for having me. I'm looking forward to this. Yeah. Well, 10:31:34:05 - 10:31:42:17 Unknown we do try to make the boring things of homes a little bit more uncommon and interesting. And that's what we're going to try to do here today. 10:31:42:19 - 10:32:08:01 Unknown And we're going to talk about board meetings. And I do think there are some interesting things to talk about with board meetings. I, I wonder between the two of us, we've both been doing this for a while. Who has been to more board meetings in their career? You have because you are a manager and as a manager, you're going to board meetings multiple times a month. 10:32:08:02 - 10:32:26:22 Unknown For better or worse, they don't have me come to all the board. What's most associations don't have me come to all the board meetings? Well, I bet you've been to to a few. I think I counted it up at one point. I think I'm somewhere around 1500 board meetings in my career. And I would imagine you've you've got a few under your belt. 10:32:26:23 - 10:32:48:07 Unknown I've got a few. I'd have to do the math. I'd have to, you know, extrapolate. Yeah, yeah. Well, when it comes to board meetings, there's lots of components. And we want this episode to be an overview of some of the basics, what people need to know. But also we want to dive into some really practical things. And maybe we'll do that more in the second half. 10:32:48:08 - 10:33:12:14 Unknown With respect to how to address things in a meeting, when when they go sideways, when you have maybe a homeowner or even a board member who might start behaving in certain ways, what do you do and how do you handle those situations? So we'll get to that. But first of all, why don't we start off with what are the types of board meetings that an HOA can have? 10:33:12:16 - 10:33:30:10 Unknown Kind of what are the categories that we should be considering? Well, I think there are two categories. One is executive session and one is general session. Now, I know that when it comes to executive session, that's where. The board meets generally without any homeowners present. Correct? 10:33:30:10 - 10:33:31:01 Unknown Correct. 10:33:31:01 - 10:33:32:06 Unknown In my experience, 10:33:32:06 - 10:33:50:00 Unknown board members have a tendency or a temptation to want to put anything that might be uncomfortable into executive session and be able to have conversations about things in executive, and then maybe have the more sanitized conversation in front of everybody in the regular meeting. 10:33:50:02 - 10:34:17:02 Unknown Talk to us a little bit about the risks of doing that, and what is the appropriate use of executive session? Yes, and that's my experience as well. So what you talk about in executive session, the things that you must talk about in executive session, the things that you're limited to talk about in executive session are set by statute, which, by the way, the statute does not say, oh, you can talk about things that make you uncomfortable in executive session. 10:34:17:02 - 10:34:46:10 Unknown That's not what you executive session is for. Personnel member discipline assessment matters, formation of contracts with third parties and legal matters. So if you go beyond talking about those things, you're in violation of the Open Meeting Act. What are the consequences? Well, you know, the Davis Sterling police aren't going to come and haul you away or anything like that, but you are in breach of the Davis Sterling Act. 10:34:46:10 - 10:35:16:15 Unknown And you do face liability to homeowners who who see that going on. Plus, setting aside, are you going to get sued homeowners? No, because so board members say, oh gee, this makes me uncomfortable. Let's talk about this, an executive session or let's get things figured out in executive session, like you said, and have a sanitized version in the board meeting, homeowners sitting in that board meeting or watching it on zoom. 10:35:16:15 - 10:35:39:07 Unknown They know when that's happened and they pick up on that and they say, wait a minute, you guys decided this in private? You should be making this decision here in front of us. So as a practical matter, that's the real concern. The homeowners get to see the sausage made, if you will, and that's what the statute intends. And that's really what homeowners expect. 10:35:39:07 - 10:36:16:12 Unknown And that winds up being a good thing in my view. Yeah. Agreed. And maybe just just a tag on to that. You have a legal obligation which could result in homeowners may challenge certain decisions that the board has made, and there may be consequences of undoing certain decisions, potentially, that a homeowner could compel a board to do. But more, more directly, I think that when a board does something like that, they are eroding the trust and the confidence they have with their constituents. 10:36:16:12 - 10:36:40:20 Unknown And and I think there is something to be said about being transparent and letting homeowners who pay their assessments every month have visibility into what's happening to manage the association that they are members of. I agree completely. You know, sometimes I hear board members say, you know, G, we want to we want to present a united front to the owners. 10:36:40:20 - 10:37:11:03 Unknown We want to seem like we're all in lockstep. And I say to them, you know, folks, I don't know that your homeowners want to see that. I think your homeowners want to see that you're having a robust discussion about association issues. And if somebody votes no on something, that's okay. Yeah. I think along those lines, sometimes that becomes an issue when you have a board where the board members maybe don't get along and things get a little volatile, and this maybe is a little bit tangential. 10:37:11:03 - 10:37:41:16 Unknown We've been experimenting lately in putting into our contract a into our management agreement with, with associations, a civility clause with the board members. Candidly, I don't know how enforceable that is as a part of our contract, but we want to at least ask board members to commit to interacting both with us and with each other in a professional, civil way, even where they don't agree. 10:37:41:18 - 10:38:12:03 Unknown And I think as long as that's true. You're right, homeowners, they do want to see how the sausage is made. They want to see the back and forth. Where it goes sideways is when people don't treat each other respectfully. That's right. And that's a completely different issue. And I do see those kinds of provisions in management contracts. And increasingly I see board members entering into or being requested to enter into board member agreements or covenants or a code of conduct where you treat each other respectfully. 10:38:12:03 - 10:38:14:07 Unknown And I think you're right. And 10:38:14:07 - 10:38:20:02 Unknown remember what your mom said. You can disagree, but don't be disagreeable. Yeah, right. Yeah, absolutely. And 10:38:20:06 - 10:38:35:14 Unknown personalities run high. Board members are just human. Plus board members and everybody else have a lot of emotional attachment to what's going on with the association. Right. This is large. This is where they live. 10:38:35:15 - 10:38:50:21 Unknown It may be everybody's largest investment. That would be typical. So emotions do run high. But it's important to guide board members to conduct themselves in such a way that they can be respectful. 10:38:50:22 - 10:39:02:01 Unknown Some of that you do with the the written agreement. Right. You kind of you sign something and then whether it's, quote, enforceable or not, you feel like there's more of a commitment to doing that. 10:39:02:01 - 10:39:27:17 Unknown And then the other way, in my view, that you can deal with that is sort of by establishing procedures, which you do, you got to do that before things start to go crazy in the board meeting. Yeah. Yeah, absolutely. Maybe we'll we'll come back to that. We do have a full episode that addresses codes of conduct for boards, and that might be something that board members might want to check out. 10:39:27:17 - 10:40:03:20 Unknown But going back to the executive session, you'd outlined the kind of four categories personnel, contract formation, member discipline and legal. Maybe we can unpack some of that a little bit. Jumping to maybe, I think, where the more straightforward one is member discipline. We're talking there about two primary categories. And you can correct me if I have this wrong, but it's primarily relating to what we might think of as noncompliance issues or violations of rules and regulations carries. 10:40:04:02 - 10:40:38:03 Unknown And then the other category that is also under member discipline might be delinquency collection matters. Do I have that about right? That's about right. Sure. Okay. And then there's a whole segment obviously there with in California with AB 130 and how you go about the noncompliance. And we have other episodes about that specifically. But that is the right way to say that, that those are topics that can be discussed in executive session, should be discussed in executive session, or must be discussed in executive session. 10:40:38:04 - 10:41:04:18 Unknown Okay. Well, to unpack it a little further, assessment issues must be discussed. The assessment delinquency issues must be discussed in executive session. Other kinds of member discipline issues in my view, should be discussed in executive session. The statutes a little funny. It does say that member disciplinary matters are to be heard in the executive session at the request of the member. 10:41:04:20 - 10:41:28:22 Unknown Well, in my view, the better practice is to have a standard practice of hearing these in executive session. And what an association might do is in the hearing letter, say this will be held in executive session or this will be held in executive session. Could even say unless you want it in open session. But I don't even think you need to go that far. 10:41:28:22 - 10:41:56:13 Unknown I think most owners want an executive session. I think it's the better practice to have it in executive session, and that's the general expectation. So I think the answer is should I do think where that can be a little bit risky? I didn't think of this until now, but there could be homeowners who want somewhat of a platform or a soapbox to make a case about maybe a particular kind of violation in the community, and they want it to be in front of everyone else. 10:41:56:15 - 10:42:16:16 Unknown If a homeowner insisted on that, would a board be compelled to allow that hearing to be in front of everybody? Yes and yes. And I've seen that happen. So that's that is something that boards should be aware of. I know our council. 10:42:16:18 - 10:42:43:03 Unknown And I don't see this always followed. But our council to boards when you do have a hearing is that board members interactions with that homeowner who's been called to a hearing, every sentence that they say after a polite greeting should end with a question mark. They should only be gathering information and not be making any type of definitive statements to the homeowner. 10:42:43:07 - 10:43:11:15 Unknown Is that something that you would agree with? That's my counsel to them as well, yes. Ask questions. And the reasoning for that is one you're not wanting, as any single board member, to inadvertently be representing their personal opinion as an opinion of the whole board. And secondly, it's just better practice to allow the board an opportunity to talk it all the way through before saying anything that's other than a question back to the homeowner. 10:43:11:16 - 10:43:46:00 Unknown Exactly. So that's one of the segments of executive session. And then we get into some of the other categories that might be a little bit messier as to do they fit in executive or do they go to a regular. So legal, where is the line that something is a legal matter that can be discussed in executive session? And where I'm going with that is, fortunately for somebody like you, people can talk to attorneys about anything. 10:43:46:00 - 10:44:28:05 Unknown And does that make anything that you talk to your attorney about a legal matter? Is potential litigation part of the equation, or only actual litigation? And talk through a little bit how a board kind of parses that out. Sure, sure. So what I think fundamentally is that the statute intends to protect the attorney client privilege. So any communication that the lawyer has with the board, any communication that the board has with the lawyer, if the board is sitting an executive session discussing an opinion or a communication with the lawyer, even though the lawyer isn't present in the room, all of those things are protected by the attorney client privilege, and all of that should be 10:44:28:05 - 10:44:51:05 Unknown in executive session. And I think that's a pretty bright line. I guess the concern could be, well, gee, they're asking the lawyer about things that aren't really legal. But the reality is, if you're serving as corporate counsel for an association, you get involved in a lot of stuff. And if you're advising the board, that's privilege and that's an executive session. 10:44:51:07 - 10:45:16:15 Unknown So what about a scenario where something happens in the community? The manager does not have the authority to go directly to the attorney without board approval, and the manager puts it on the agenda to ask the board for counsel as to, is this something I should take to the attorney or not? And in the process, the manager is having to kind of explain the situation and get into the details and so forth. 10:45:16:17 - 10:45:21:14 Unknown And the manager is concerned this could become. 10:45:21:15 - 10:45:50:17 Unknown Something that results in litigation board. What do you think executive session or regular session? That's probably the executive session. Potential litigation in that you raised this in your last question as well. So potential litigation, certainly that's a legal issue and that's an executive session. Active litigation of course, is an executive session. So I if the manager is concerned somebody is concerned this could lead to litigation that there's there are liability issues. 10:45:50:17 - 10:45:55:09 Unknown I think that's probably a legal issue. And I think that's probably appropriate for executive. So 10:45:55:09 - 10:46:22:06 Unknown a little bit of a side question to this that I don't know the answer to the difference between executive session and protected or privileged communication. If a legal matter is discussed in executive session without an attorney present and maybe not even discussing an attorney opinion, but just talking about a potential legal matter amongst just the board, but it's in executive session. 10:46:22:06 - 10:47:01:16 Unknown Is that protected communication, or could those those discussions be compelled to be brought out into a legal deposition or something else further along? Okay. So communications with regard at some point, communications with regard to what are we going to talk to the lawyer about? Those are going to be protected by the privilege. More general communications are not going to be protected by the attorney client privilege, because they're not communications to or from legal counsel, but a conversation about, we should say this and that to the attorney, then that's going to be protected by the privilege. 10:47:01:16 - 10:47:26:08 Unknown And then certainly any communication to the attorney or from the attorney or conversation about those things that's protected by the privilege as well. So maybe just to press this because it's interesting and I don't know the answers. So a manager shows up at an executive session and says, hey, this happened in the association. And by the way, I talked to Joe Smith and he told me this, this and this. 10:47:26:08 - 10:47:46:15 Unknown And then I went and I looked at this and the managers giving all of this information to the board in an executive session. And maybe some of that information is information that the board wouldn't necessarily want being brought out at a later date. The board has not yet given direction to the manager to go talk to the attorney. 10:47:46:15 - 10:48:16:12 Unknown So this is all kind of speculative. What do we do about this kind of discussion? Is that conversation potentially available for being brought out in in in a deposition for example? Potentially. Yes. Okay. Yeah. So the line there about I think what I'm trying to bring out is that just because you're an executive session doesn't mean that the information or communication that happens in that session is protected on a legal basis. 10:48:16:12 - 10:48:36:22 Unknown That's exactly right. That's very true. And so where the lines are drawn, whether it's an executive or not, an executive is probably the same. And that is are you talking to your legal counsel and is it attorney client privilege, or are you talking about what you're going to talk to your counsel about? And I'm understanding you to say that's also attorney client privilege. 10:48:37:00 - 10:48:58:05 Unknown And that's going to be true whether you're an executive or not. Yes. But other conversations, you have an executive that don't fall into that description may not be protected. They're just going to be kept in a separate set of minutes that aren't necessarily available to the general public whenever they want it. That's right. Yes. But that's still discoverable. 10:48:58:06 - 10:49:03:20 Unknown Yeah. Interesting. Okay. And then we move to 10:49:03:22 - 10:49:32:08 Unknown the topic of personnel, which is talking about association employees, which would be largely in association in most cases that maybe doesn't have a management company or is employing employees directly. I would take that generally to also apply to employees of the management company. If the board had feedback relating to those specific employees, but that could also be argued to fall under the contract. 10:49:32:08 - 10:49:55:01 Unknown But we specifically say that executive session is for the formation of contracts, not just about contracts in general. So maybe unpack let's talk about the employee aspect. Unpack what I just said about employees. Is it personnel? Is it contracts when we're talking about management company employees? Okay. So the reality is many, many associations do not directly employ personnel. 10:49:55:05 - 10:50:17:09 Unknown I was I think it's easy to say the vast majority of them don't. Yet they have this executive. They have the ability to discuss personnel in executive session. I think that allows them to talk about management company personnel in executive session. These wind up being personnel issues there certainly personnel issues with regard to the management company. So I'm comfortable that that can be an executive session. 10:50:17:09 - 10:50:44:07 Unknown let's go to the topic of contract formation. And the the catch there that I'm going to bet most board members don't understand and even many managers don't understand is is that word formation. So maybe you know what I'm getting at. Unpack that. What does the what does contract formation mean for executive session as opposed to just contracts? 10:50:44:08 - 10:51:17:18 Unknown Sure. Well, the purpose of the statute, as I understand it, is to protect information that's provided by contractors that they would not want to have out to the general public and their competitors. So they are presenting bids, they're giving you pricing, they're giving you scopes, that stuff that they don't want to have publicized. Right. They don't want to have their competitors sitting in open session in the back of the room saying, oh, gee, you know, ABC construction is going to do the work for this many dollars. 10:51:17:18 - 10:51:50:20 Unknown I can undercut them by this. That's what they don't want. So that's the reason you're discussing these things in executive session. You're looking at forming contracts in the sense of reviewing bids, proposals, scopes, those kinds of things. So theoretically. So to take what you are saying, a community could be looking at hiring a new lighting maintenance vendor. They could get three proposals, evaluate those three proposals and discuss them in executive session. 10:51:50:21 - 10:51:54:06 Unknown Yes. 10:51:54:08 - 10:52:29:12 Unknown A community could be looking at some one off types of proposals where, let's say it's a high rise community, and they are looking at proposals for a company that is going to provide them with new treadmills for their fitness room. Those proposals for the new treadmills could all be in executive session. I think that's right. Yes. The reason I'm I'm making the distinction between those two different categories, and I'll play the homeowner here a little bit. 10:52:29:14 - 10:53:00:15 Unknown The the first category of a new lighting vendor is a scenario where that's just something ongoing. It's normal and you change the vendor. You're not really changing anything about the community, but you're just changing who is performing the task and the boards reviewing that contract. And for the homeowner, they probably don't really care. But for the treadmill, what's coming in as part of those proposals is actually different models of treadmills, different kinds of treadmills, different features of those treadmills. 10:53:00:15 - 10:53:26:02 Unknown And now when the board is evaluating those contracts and having those discussions, and they're going to replace maybe an aging treadmill that's already in the in the fitness facility, the board is going to be making decisions about things that are fundamentally going to change the homeowners experience in the community, and they could conceivably do that in executive session without the homeowners being aware that that that that's happening. 10:53:26:08 - 10:53:54:11 Unknown Well, you know, that's a good point. That's a good point. And so is the is the purpose of the statute to protect a, a protect the confidential information regarding bidding or, or does it still allow the board to discuss the kinds of treadmills or products or whatever it might be in open session? And that may be a valid distinction. 10:53:54:11 - 10:54:14:07 Unknown So maybe the better practice would be consider things like pricing in executive session. But if you're going to talk about the relative merits of this or that treadmill or whatever it might be, that's going to affect the the homeowners experience, that is certainly appropriate for general session. So 10:54:14:10 - 10:54:19:00 Unknown let me push on this a little bit further, or maybe try to clarify. 10:54:19:01 - 10:54:32:11 Unknown I think what I'm hearing you say in answering this question is more of what is good practice for an HOA, as opposed to these are the legal guidelines which I appreciate the distinction. And it's it's important. 10:54:32:11 - 10:54:44:12 Unknown My guess is that a board could probably get away with having those kinds of discussions in executive session about the different features of a treadmill, all under the the context of this contract formation. 10:54:44:12 - 10:55:03:18 Unknown And this vendor is going to give us this, and this vendor is going to give us this. And we we we can theoretically keep that confidential because we don't want the vendors knowing how they're competing with each other in that regard, when the reality is the board just finds it either easier to talk about an executive session or they want to hash that all out without homeowners chiming in on, no, I want this feature. 10:55:03:18 - 10:55:37:23 Unknown I want this feature. They could get away with all of that, but that might not be best practice. And I think what I'm hearing you say, and I would agree with it wholeheartedly, is we should be thinking about what is best for the community, not what can we get away with legally. Oh, absolutely. That's right. Yeah. And in this case, my suggestion, I think if I was to put together, I think what we're both saying is it might be perfectly appropriate and good for the board to have very robust conversations about those contracts and even those features in executive session. 10:55:38:01 - 10:55:58:08 Unknown But maybe they go ahead and say, we could make this decision here in executive, but this might be a situation where you say we're we're going to have kind of the pre discussion in executive because we can and it's a there's a it's a good place to do that because of the nature of the contracts. But we're going to actually make the decision in regular session where we're not going to get into all those details. 10:55:58:08 - 10:56:14:06 Unknown But we might highlight some of them for the homeowners, so that they understand the essence of what kind of change that they might experience and what we're what we're thinking about. Yes, I think that's very well put. Yeah. Okay. So that would be an appropriate way in your mind to to think about that. Yes. That would be a good way to do it. 10:56:14:08 - 10:56:43:05 Unknown So then I think we'll be landing the plane here on executive session in a minute. But I want to go to one other element and that is budget time. So many boards want to discuss at least the drafts of their budget in executive session. And there's lots of ways to get around that, that you can have a finance committee with two board members on that, and that's a separate thing. 10:56:43:05 - 10:57:09:22 Unknown But then there's a discussion about can homeowners attend the finance committee meeting? We'll save that for another time. But for executive session boards oftentimes want to discuss that. And one way they might want to get around that is most of the budget is comprised with reviewing contracts and personnel, which can comprise a significant portion of most association's budgets. 10:57:09:22 - 10:57:36:11 Unknown And so they can talk through those details and how it's going to flow into their budget in that way, and then kind of have that sanitized conversation. If one of everybody else talk to that a little bit, I am not loving that concept. So, sure, boards can talk about can we talk about formation of contracts? We're not necessarily talking about, because when we think about a budget, we're not really forming contracts. 10:57:36:11 - 10:58:05:07 Unknown We're saying, okay, we anticipate that this project, this element is going to cost this many dollars. So, I mean, I suppose if you have bids in hand and you want to talk about what number you want to put in this particular budget line item, because company A has bid this much, company B has bid that much, or historically A and B have presented these bids. 10:58:05:08 - 10:58:39:09 Unknown That's okay for executive session individual conversations about personnel salary. Certainly that is an executive session. But aside from those things, budget formation is a general session item. And I know that board members are feel uncomfortable about having the budget discussion in front of the membership. But in general formation, the budget is not one of the items the statute says you need to discuss or may discuss an executive session. 10:58:39:11 - 10:59:05:16 Unknown So I think a good rule of thumb for the contract formation topic and executive session might be due. You have bids in hand. Are you talking about actual proposals? And maybe the the underlying theme I'm hearing from you is the nature of those discussions, and that being an executive session is for the purpose of protecting the vendor, not the board. 10:59:05:16 - 10:59:11:15 Unknown And that might be kind of the the guideline that a board should be thinking about. Yes, that's how I see 10:59:11:17 - 10:59:41:08 Unknown now. On personnel. You said it would. It's appropriate for a board to talk about individual compensation levels in executive session. And I would agree. But what about compensation levels that maybe aren't regarding individuals as in like one person at a time, but groups of individuals you've got, you know, what's going to be kind of our average wage that we're going to approve for our front desk employees. 10:59:41:10 - 10:59:56:20 Unknown How much of that needs to be made public versus what a board might do in executive? Oh, I think those conversations are executive session as well. Okay. General conversations about our our salary range for this particular position. I think that's executive session I think that's 10:59:56:21 - 11:00:03:07 Unknown All right. Well let's back up from executive session. Although there's one other element still to touch on there. 11:00:03:07 - 11:00:28:10 Unknown But talk about notice requirements for board meetings in general and the difference between notice requirements for a regular board meeting versus an executive session board meeting. Sure. So four days notice required for a general session board meeting. All right. So we'll stop right there I want to just want to get very specific four days or 96 hours. Statute says four days. 11:00:28:12 - 11:00:36:08 Unknown So what does that mean I'm asking you. 11:00:36:10 - 11:00:46:15 Unknown I think the best practice is 96 hours. I certainly would not play games with that. I would not be posting stuff at midnight or whatever. 11:00:46:17 - 11:01:15:00 Unknown But I think if you were to post it, you know, 90 hours in advance, I think that would not be a violation. Okay, so I'm sorry I cut you off four days in advance. And what does that notice need to entail? Okay, so date time and place. There is specific requirements with regard to if you're going to have a zoom meeting involving obviously the zoom link instructions about zoom, the phone number of somebody who can assist you. 11:01:15:00 - 11:01:22:14 Unknown If you need help with the zoom, you're either during or before the meeting that needs to be on the notice. I think it does. I have to double check. But 11:01:22:16 - 11:01:45:06 Unknown that's my memory of what the statute says. So that plus perhaps most importantly the agenda. Okay. So we'll come back to the agenda. The notice requirement, if it's zoom and in person, you would just post both the zoom information and the location of where you could meet in person. 11:01:45:07 - 11:02:08:10 Unknown Yeah. Where does the notice need to be posted? Okay. So it is it needs to be provided by what the code calls a general delivery, which means posting it. So what that means is you're in your annual policy statement. You will advise members as to where such notices are posted. It can be. 11:02:08:11 - 11:02:31:12 Unknown A prominent location in the community. It can be on a website that meets certain conditions. Okay, could a board distribute annually and say, this is when our meetings are going to be for the whole year, and consider that the notice the answer is going to be no, because you don't have the agenda posted. In the olden days, you could have done that, probably. 11:02:31:13 - 11:02:56:08 Unknown Well, you know what? In the olden days you could have done that. But even then, posting the requirement that it be posted four days before the meeting, you could probably have gotten away with it. But yeah, not now, because you need to include the agenda. I think 25 years ago when I was managing, I probably did that. But yeah, now that is relatively a newer statute that you need to post the actual agenda. 11:02:56:08 - 11:03:39:09 Unknown So talk a little bit about what constitutes an agenda item. So these are topics right. Consider purchase of item X approve budget approve minutes their their topics. And those agenda items should be relatively set forth relatively briefly on that posted agenda. I guess where I'm driving at is how specific do they need to be? So in other words, could a manager and or a board post agenda item association pool? 11:03:39:10 - 11:03:55:00 Unknown And then when they get to that point, they could talk about everything from pool rules to resurfacing the pool to new pool filter. To do we need pool monitors for this summer. 11:03:55:02 - 11:04:14:23 Unknown Could you do something like that? I think the better practice is to be more specific. So when you're preparing the agenda, you probably know what things you want to talk about. Do we need a new new pool equipment? Well, the topic is pool equipment. Do we need to talk about pool monitor as well? That seems like a separate topic, so I would be specific in that regard. 11:04:15:04 - 11:04:44:03 Unknown I think that's a better practice. I think that's the intent of the statute. I think again, which we're coming back to, is not what you can get away with legally maybe, or justify legally, but what is going to be a good practice for a healthy association? What's going to be a good practice for a healthy association? With regard to some of these, we're also trying to predict what a judge would do if they were presented with the set of facts, because we don't have case law interpreting much of this stuff. 11:04:44:04 - 11:05:03:10 Unknown But I think a lot of this, even if you're protecting the association legally, is going to come down to a certain reasonableness standard. You know, is is the associate, is the board making an effort to act in the best interest of the association as a whole? Yes, yes. And it's highly unlikely a judge is ever going to make a decision. 11:05:03:10 - 11:05:33:21 Unknown But for sure, homeowners are going to be looking at what you're doing every day and they're going to form an opinion about what's happening. And again. Yeah. Again, it's about are you willing to sacrifice credibility and trust? So you're you're posting the agenda for the regular session, the regular session board meeting outlining new business, unfinished business minutes, financials, all of that information now for an executive session. 11:05:33:23 - 11:06:01:19 Unknown What are the notice requirements there. So two days notice same posting requirements okay. Oddly you need to set forth the location. Even though homeowners can't attend you need to include the agenda, which of course raises the question, what are you going to put on the agenda if it's executive session and the things that you are talking about are either privileged or to be held confidential? 11:06:01:23 - 11:06:08:11 Unknown So we'll come to the agenda in just a second. But as far as the posting. 11:06:08:13 - 11:06:41:14 Unknown I have had some boards and maybe even some attorneys. I could be wrong about that, but but at least some boards that would say, since homeowners can't attend, the notice requirement for executive session is primarily for other board members, not necessarily for the membership as a whole. We do need to announce that the next regular session that we held an executive session, and what the date and location of that was and the topics that were discussed. 11:06:41:14 - 11:07:00:04 Unknown But as far as the advance notice may not be as important. And I hear you saying something different. Yeah, I am saying something different. I do think the intent of the statute is that members know that the board is going to be meeting in executive session, and obviously, as you said, know when and where, when and where, even if they can't attend. 11:07:00:05 - 11:07:34:18 Unknown Yeah. And as far as the topics on the agenda for executive session, I do have boards that will post first topic litigation or legal second topic personnel, third topic contract formation and fourth topic member discipline. And that's the agenda for every executive session. Yeah. Well you need to you need to set out those agenda items very generally. Certainly when you talk about member discipline you're not going to have item one, John Smith's failure to pay his assessments. 11:07:34:18 - 11:08:09:04 Unknown Item two Sally Jones you no parking overnight. You can't have that. I think for something like member discipline, I think it is okay to have an agenda item that says member discipline hearings regarding member discipline, consult with legal counsel regarding legal issues. I think those things are okay. But but, you know, to have a standard agenda that includes all 4 or 5 potential issues that you might discuss in executive session, I don't think I'd do that. 11:08:09:04 - 11:08:29:09 Unknown I think I'd put on there what you're really going to talk about. Okay. And then what are the I'm not sure what the terminology is, but the the announcement or disclosure requirements of executive session after the executive session. Okay. So the first of all, it needs to be disclosed in the minutes of the the next general session that follows. 11:08:29:09 - 11:08:48:22 Unknown And you want to have at least enough detail so that owners know what's going on. Just conversation with legal counsel, disciplinary hearings. You know, maybe you could say approve. 11:08:49:00 - 11:09:16:04 Unknown Foreclosure on based upon an assessment delinquency without providing any additional detail, those kinds of things that might be where if the board is approving contracts, that maybe instead of just saying formation of contracts, you could you could say the board approved a contract to do X, Y, or Z. Exactly. Yes, yes. Okay. And you said that needs to be in the minutes, which is kind of the legal way to say it. 11:09:16:04 - 11:09:39:09 Unknown But the practical way to play that out is usually the board president or manager or somebody is going to make a statement in that regard in the board meeting, and then it gets recorded in the minute. Yes. That's right. Okay. So those are a lot of the kind of technicalities I think, around board meetings. But now we get into some of the practical aspects. 11:09:39:10 - 11:10:04:06 Unknown And you had alluded to this a little bit earlier, that sometimes we have situations where board members might not behave in the best possible way, or even homeowners might behave in unhealthy ways. And you would suggest that that the best way to handle that is to have certain protocols and procedures kind of laid out ahead of time. Speak to that a little bit. 11:10:04:06 - 11:10:23:23 Unknown What are some of the things that a board should be thinking about in that regard? Okay, so we talked a little bit about a board code of conduct. Sometimes a new board member or prospective board member feels like this is oppressive, and that people are trying to limit what they do, or trying to compel them to agree to something that they're not obligated to agree to. 11:10:24:00 - 11:10:32:22 Unknown And the truth is, they're not obligated to agree to a code of conduct if they're elected. But at least it sets out. 11:10:33:00 - 11:11:03:18 Unknown Ways to act, ways to be together, and it gives them something to read and look at. And it gives some peace, gives other board members something to point at and say, you know, the code of conduct says you should not do this. But even more important than a code of conduct, I think, is establishing a protocol. This doesn't need to be a long written protocol, but establishing a procedure whereby things are handled in a systematic matter manner. 11:11:03:19 - 11:11:29:09 Unknown Okay, so follow your agenda. Somebody the president or maybe it's the manager takes a level of control over the meeting. Agenda item comes up. What happens next? I'm going to open it up to discussion. And then board members talk one at a time. And if people are talking at the same time, stop. Okay, Bob, let's hear from you. 11:11:29:09 - 11:11:55:15 Unknown Then we'll hear from Joe and get in the habit of doing that. And you would say, that's the role of the board president to kind of be that enforcer. You know, I see the president doing it. I sometimes see management doing it. Board presidents come with different tools and skills and abilities. I guess in an ideal world, a president would be wonderful and could always do that. 11:11:55:17 - 11:12:17:14 Unknown But somebody needs to do that president or or maybe the manager. If the dynamic of the board is such that that would happen. But that's a burden to put on the manager too, because they're directing traffic with regard to the people to whom they report. So yeah, yeah, I would I would advocate from the management standpoint that I think it is healthiest for the board president to play that role. 11:12:17:14 - 11:12:44:12 Unknown If there's going to be somebody being the heavy in a board meeting, because it is a very awkward place for the manager to be telling his his or her clients what to do. I agree. That being said, I do understand that there are differences in skill sets and at the very least, it might be if a board president doesn't want to do that role, or the board thinks it's best for the manager to do that. 11:12:44:12 - 11:13:09:10 Unknown To do that role, I would suggest that the board president, at every meeting at the beginning make some kind of statement saying we're asking Joe or Susie manager to play this role and re-emphasize that literally at every meeting. So everybody's reminded, look, as a board, we're asking the manager to do this. I think that that practically helps with with playing that role, I like that. 11:13:09:11 - 11:13:35:09 Unknown Yes, I like that a lot. And then we have this this concept of open forum in at least in California. And that's where when the lines are crossed with open forum where you can have homeowners that might get a little bit out of control. But talk a little bit about what are the what are the considerations for open forum? 11:13:35:09 - 11:13:54:06 Unknown Okay. Well, what's important to remember is the statute requires that a time limit be placed on the member comments, which is kind of really I didn't know that. Is that new? No. It's always yeah, it's I knew that that that the statute allowed for it. But it requires a time limit mandatory, which is kind of it's interesting. It is interesting. 11:13:54:10 - 11:14:17:22 Unknown Okay. But the reality is, statutory or not, the way you deal with that is you tell members everybody's going to get three minutes or and you can also say, and we're going to put a time limit on homeowner forum of 20 minutes or 30 minutes, whatever it might be, whatever is reasonable. And then you enforce that. Let everybody know up front, enforce it, be fair. 11:14:18:00 - 11:14:42:04 Unknown Let if some if it's somebody who's pleasant and who you like goes over three minutes, you stop them just as you would somebody who is saying something that you don't like or who is using a tone that is unfortunate, right. And force that and enforce it every time. And then when that homeowners forum is concluded, maybe you say something like, okay, form, homeowners form is concluded. 11:14:42:04 - 11:15:01:10 Unknown When I say you say this, the president says this. Now we're going to bring it back to the board. We won't have any more comments from the the homeowners, and all discussion will be at the board level. And then remind people, because you do see owners want to pipe up and say, oh, I have something to say, that this is this is not their time to offer. 11:15:01:10 - 11:15:49:13 Unknown Comments. So if I could be on my soapbox for a minute. Yeah. I think this is one of the areas that board members for associations misstep, maybe more often than anything else, in a very practical way. First of all, oftentimes we'll see board members who, in the interest of wanting to cultivate. This community involvement and making homeowners feel welcome, they will extend a very wide berth to homeowners and open forum and allow them to talk virtually almost as long as they want. 11:15:49:13 - 11:16:27:03 Unknown And throughout the board meeting, and they can say, I'm doing that in the interest of the homeowners and wanting to protect the homeowners. And I can see that altruistic approach and even perspective. But the reality is it doesn't function the way that they think that it does. I can recall when I first started, there was an association I was assigned to, and we would have six hour board meetings, and it was because there might be a three hour open forum and you'd have a homeowner show up with a very specific thing they'd want to talk about. 11:16:27:04 - 11:16:42:14 Unknown They've got to get home to their family. Maybe they need dinner, or they've got kids to put to put to bed or whatever it is, and they show up. They sit there for an hour and a half listening to open forum, go on and on, and then they leave and they never get to engage because other homeowners are dominating before it gets to be their turn. 11:16:42:14 - 11:17:15:07 Unknown I think in the interest of fairness, that a board ship to have these limits and then a board might say, yeah, but we have three homeowners there, we can give them a lot of latitude. I have yet to be in an association where there's not a season or a topic where something comes up in that dynamic changes, and if you haven't, one exercised the muscle to have that done regularly, or two if you all of a sudden change the rules just because a lot of people show up now, you might have other problems because you're not being consistent. 11:17:15:09 - 11:17:41:21 Unknown I think even if you only have two homeowners show up every month, you should have time limits on the open forum. You should have a time limit as to when open forum overall ends, and you should not allow discussion unless a homeowner specifically asked because they have expertise or perspective that the board wants. They the homeowner, shouldn't participate after the open forum or apart from the open forum and I. 11:17:41:23 - 11:18:01:01 Unknown And so I guess the point is, is I think that even when it seems like those things are not necessary, every association I've been involved with in 30 plus years, at some point it has been necessary. And if you're not doing it all along. It's very difficult to to pivot, to be able to do that when you need it. 11:18:01:01 - 11:18:37:02 Unknown And so just do it all the time. That's exactly right. That's exactly right. When things are going south in the middle of the meeting, it is too late to change the culture, or even in the middle of of the lifespan of an association. You could do things a certain way for six years and it's all totally fine. And then something comes up and you, you have not been practicing a certain way, and now you're like, hey, now we're going to do this with, well, it it becomes really difficult to to make that pivot both legally because you're changing the rules and practically and culturally. 11:18:37:03 - 11:18:42:05 Unknown Yes, absolutely. So I think that those are our important 11:18:42:05 - 11:18:43:05 Unknown fundamentals. 11:18:43:06 - 11:18:58:15 Unknown So just to review what you were saying, there's an obligation to put time limits on what an individual homeowner can contribute in open forum. You can define open forum for a specific period of time. That open forum can come at any point in the meeting, beginning, middle and end. 11:18:58:15 - 11:19:36:06 Unknown But you have a defined period for the open forum with a timeline to the overall open forum, and you make it clear to homeowners that they are welcome to, to to witness and to observe the board meeting, but not to participate. Board members do have the option of inviting a homeowner to participate. If a particular homeowner might have specific expertise on something like, for example, the board is talking about an agenda item that relates to a specific area of the community, and none of the board members live there, and they're trying to recall what is going on in this corner. 11:19:36:06 - 11:19:56:00 Unknown And then there's a homeowner there who has that. They might ask the homeowner, hey, can you give us that feedback? And I would suggest on those kind of one off basis that's appropriate, but otherwise homeowners should just be observing and not participating. And board members might need to remind their homeowners of that on a regular basis. Yes. All true. 11:19:56:02 - 11:20:14:02 Unknown Your thoughts on having a sign up list for open forum and asking homeowners if you want to speak during open forum, you should sign up. I think that's a good way to just sort of organize things. I think that's there's no reason not to do that. Again, maybe that's a practice you want to put in place before it's really needed. 11:20:14:07 - 11:20:27:22 Unknown Absolutely. Have two people there. You got to sign up. So then when 50 people show up, you have that in place and you have a system for zoom meetings. 11:20:28:00 - 11:20:55:11 Unknown Are there requirements regarding the settings on zoom? In other words, I'll ask two specific questions and maybe there's others, but when it's not open forum or even when it is open forum, can the board have homeowners muted except for when they're called on to speak? Oh yeah. So you can the board can exercise a certain level of control. 11:20:55:12 - 11:21:18:10 Unknown Oh yeah. There's no reason if that they they shouldn't be muted. They're not there. They have no reason to be speaking. And as a practical matter, you know, the reality is if somebody is at their home or someplace else, there's background noise and feedback and all that other stuff. No. That's appropriate. And then what about when Open Forum is not going on? 11:21:18:11 - 11:21:52:23 Unknown Is there an obligation that the homeowners themselves are visible on the screen? So I'll get to a specific example I was actually brought into. This is actually a case in Texas actually, but it still applies to California or any association. But there was a homeowner on zoom behaving in a vulgar manner in the board meeting, and obviously you could remove that homeowner, I think, in that situation from zoom. 11:21:52:23 - 11:22:03:14 Unknown But even to protect that from ever happening in the first place, could a board just say apart from open forum, you can observe it, but we're only going to have the faces of the board members on the screen. 11:22:03:19 - 11:22:06:04 Unknown Well, I think that'd be appropriate. Yeah, no reason not to. 11:22:06:04 - 11:22:13:11 Unknown there's no obligation that homeowners should be able to see each other or that board members have to be able to see the homeowners. 11:22:13:12 - 11:22:42:22 Unknown That's correct. Okay. All right. Well, that's that's very helpful. So I guess just as we as we conclude this episode, I wanted to ask you, are there any particularly maybe not for good reasons, but are there any particularly memorable board meetings that you've been at that just like stand out that maybe something kind of frightening happened or something shocking happened, or in your career, does anything come to mind? 11:22:43:00 - 11:23:16:17 Unknown Oh my goodness gracious. Well, you know, I've recalled a couple of board meetings where there was police presence that's always interesting and surprised homeowners. Nothing particularly alarming happens when the police are there. But boy, it certainly sends a message. And, you know, you make makes you wonder how you got to that point, right? It is a that's a fair thing to say. 11:23:16:17 - 11:23:38:08 Unknown It makes you wonder how you got to that point. That being said, if a board has reason to think that the safety of the homeowners or even themselves is at risk. I think it is an appropriate measure to take to invite the police or some other type of security measure to send that message, at the very least, and to ensure that you're going to have a safe meeting. 11:23:38:08 - 11:24:04:06 Unknown Very true. Yeah, that's very true. I can tell you, if I was to turn that question back on me, there is one time early in my career when I was a manager, when I was sitting at a at a table in a board meeting, and we were in a conference room for like a community room for a bank, but it had its own separate entrance, not through the main bank to to this community room. 11:24:04:06 - 11:24:27:12 Unknown And I actually wondered if I flipped the table over. Would it be bulletproof? There was a homeowner who came into a board meeting, stood before the board yelling and screaming, and did not get his way with the board, and stormed out of the room and everybody kind of side a big sigh of relief, glad that he was gone. 11:24:27:12 - 11:24:57:16 Unknown But later still in the board meeting, this homeowner comes charging back in through the back door and reaches behind his back to pull something out from behind his back. And in that instant, you just start to wonder, is this table bulletproof? If I flipped it over because it's the only thing between me and that person. And fortunately, in this case, the homeowner ran home to get a whole bunch of documents and had them stuffed in his back pocket and was pulling them out to slam them on the table. 11:24:57:16 - 11:25:19:21 Unknown But you wonder sometimes. Yes you do. And so, yes, when there are safety concerns that you know about ahead of time, it's okay to take appropriate precautions. Oh, absolutely. Yes, yes. Well, John, thank you so much. I think this was a very interesting and helpful conversation. And I'm glad that you're able to to join us for this. Well, thank you so much for the opportunity. 11:25:19:22 - 11:25:20:21 Unknown It was really enjoyable. 11:25:21:03 - 11:25:26:15 Unknown Well, I appreciate John being part of this episode and the perspective he brings to 11:25:26:15 - 11:25:27:15 Unknown board meetings. 11:25:27:19 - 11:25:36:11 Unknown you found this episode to be helpful, we would really appreciate it. If you would like and subscribe to the uncommon Area and tell other people about this podcast.