OPEN MEETING ACT Civil Code Section 1363.05, as amended, will go into effect January 1, 2008. This article will summarize the newly amended section. 1. Attendance at Meetings . Any member of the association may attend meetings of the board, except when the board adjourns to executive session. [Civil Code 1363.05(b)] What is executive session? It is where the board considers litigation, matters relating to the formation of contracts with third parties, member discipline, personal matters or, upon a member's request, to discuss a member's payment of assessments. If requested by a member, the board shall meet to discuss a fine, penalty, or other form of disciple in executive session. [Civil Code 1363.05(b)] 2. Minutes of Executive Session . Matters discussed in executive session shall be generally noted in the minutes. Examples: A. A discussion was held concerning the management contract. B. A violation of the CC&R's by a member was discussed. 3. Minutes . Draft minutes, a summary of minutes, minutes proposed for adoption, minutes, other than of an executive session, shall be available to members within 30 days of the meeting. Upon request and reimbursement of the costs, the minutes, proposed minutes or summary minutes shall be distributed to any member making the request. [Civil Code 1363.05(d)] 4. Right to Obtain Copies of Minutes . Members shall be notified in writing at the time the pro forma budget is distributed (not less than 30 days nor more than 90 days before the beginning of the fiscal year), or at any general mailing to the membership, of their right to obtain copies of minutes of meetings of the board. This written notice shall state how, where and the cost to obtain these minutes. [Civil Code 1363.05(e)] NEW 5. Notice of Meetings . Unless the time and place is fixed by the bylaws, or unless the bylaws provide for a longer period of notice, members shall be given notice of the time and place, except for an emergency meeting, at least four (4) days prior to the meeting. Notice shall be by 1) posting in a prominent place or places within the common area and by mail to any owner who has requested notification of board meetings by mail; 2) by mail or delivery to each unit; or 3) by newsletter or similar means of communication. THE NOTICE SHALL CONTAIN THE AGENDA FOR THE MEETING. [Civil Code 1363.05(f)] NEW 6. Emergency Meetings . An emergency meeting is defined as circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board and which of necessity make it impracticable to provide notice. An emergency meeting may be called by the president or any 2 other members of the governing body. [Civil Code 1363.05(g)] 7. Speaking at Meetings . Any member may speak at a board or member meeting, except at executive session. The board shall set reasonable time limits. [Civil Code 1363.05(h)] NEW 8. Board to Discuss Only Agenda Items . Board members can only discuss or take action on items placed on the agenda (including in the notice that was posted and distributed). However, a resident, who is not a member of the board may speak on issues not on the agenda. Notwithstanding the above, a member of the board or agent of the board may do the following: A. Briefly respond to statements or questions by a member who is not on the board; B. Ask a question for clarification, make a brief announcement, or make a brief report on his/her activities. [Civil Code 1363.05(i)] NEW 9. Items not on the Agenda. The Board may take action under the following conditions for items not on the Agenda: A. Upon determination by a majority of the Board (present at the meeting) that an emergency situation exists. An emergency situation exists if there are circumstances that could not have been reasonably foreseen, that require immediate attention, that require immediate attention and make it impracticable to provide notice. B. Upon a determination made by the Board by a vote 2/3 of Board Members preset at the meeting, or if less than 2/3 of Board members present, by a unanimous vote of Board members present that there is a need to take immediate action and that the need for action came to the attention of the Board after the agenda was posted and distributed. C. A previous item appeared on an agenda that was posted and distributed that occurred not more than 30 days before action is taken and, at the prior meeting, action on the item was continued. D. Before discussion anytime of an item, not on the Agenda, it shall be openly identified to the numbers in attendance. [Civil Code 1363.05(i)] RECOMMENDATION This new law forces boards to plan ahead and to inform members of its Agenda. Do not risk violation the law, only take action on items on the Agenda (except in emergencies).
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