The Coronavirus has quickly made its mark throughout the world and severely impacted our lives. Growing numbers of community associations are also struggling to determine how to continue conducting business in a society where business and social gatherings are either prohibited or highly discouraged. While a perceived simple solution for many communities may be to take action outside of a meeting to approve board actions while the pandemic subsides, other options are available for communities which provide a more transparent method for conducting business.
With the exception of electronic meeting notices, CCIOA provides little guidance on conducting board meetings electronically. Fortunately, the Colorado Revised Non-Profit Corporation Act comes to the rescue. C.R.S. 7-128-201 states that a board of directors may permit a meeting to be conducted “through the use of any means of communication by which all directors participating may hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.” However, if the Association Bylaws provide otherwise (i.e. they mandate in person meetings), then electronic meetings are not permissible per the statute. However, do not worry there is still a way to make those electronic meetings happen! Fortunately, there are legal doctrines that provide exceptions when it is impossible (i.e. due to a quarantine) or impractical to comply with certain (contractual) provisions in the Bylaws. Given that conducting in person meetings may present a health and safety hazard for participants for the foreseeable future or may be legally prohibited, it appears that a legal exception can be made for conducting the meetings electronically even when the Bylaws imply or require in person attendance at meetings. Some points supporting this argument are:
- Electronic meetings will encourage increased homeowner participation by eliminating any viral related concerns;
- The process provides a more interactive and informative process in making association decisions than taking action outside of a meeting;
- With the exception of seeing residents in the flesh, the process if properly implemented arguably provides the same transparency as an in-person meeting of the members;
- Measures can be taken during the electronic meeting process, such as providing a method for homeowners to attend and (vocally or by typewritten conversation) participate in the meetings electronically; and
- A very cautious board may, following the conclusion of an electronically conducted meeting, take ‘action outside of a meeting’ to ratify the decisions and actions of the board from the electronically conducted meeting.
Some available ‘electronic’ meeting options include voice and/or video based conference calls. There are several platforms available to accomplish the electronic conference calls and most permit the ‘hosts’ of the meeting, in this case a Board of Directors, to mute participants and provide a clear method for communicating information and making decisions. Further, at an appropriate time (owner) participants can request to speak and be heard by all attendees once called upon by the board of directors. I am personally a fan of the business version of www.freeconferencecall.com .
So how do you get the process started? Associations should first consult with their legal counsel to determine the best method for conducting meetings going forward. If electronic meetings will be permitted, it is highly recommended that a policy regarding electronic meetings be drafted and adopted to detail the legal authority and process for future electronic meetings.
If your Association would like further information or clarification on how to proceed with electronic meetings, feel free to contact The Dupont Law Firm.
The information contained in this article does not constitute legal advice. Before proceeding with any course of action relating to electronic meetings, please make certain to consult with your association attorney.