Let’s face it, the COVID-19 pandemic has changed how Arizona HOAs and condos conduct business. For everyone’s safety, in-person board meetings are not recommended until there is widespread vaccination in our country. Set forth below are “tips from ten months in the trenches” on how associations can comply with the Arizona Open Meeting law and conduct successful virtual board meetings.
Under Arizona law, any time a quorum of the board is meeting to discuss association business the Arizona Open Meeting Law for HOAs and condos must be followed. Here’s a quick recap of that law with a “virtual” twist:
1. Notice of Board Meeting/Agenda: Notice to lot/unit owners of open board meetings and executive session board meetings must be given at least forty-eight hours in advance of the board meeting by newsletter, conspicuous posting on common areas, email or the association’s website. The notice should include the date and time of the meeting and instructions on options to attend via videoconferencing or conference call. We also recommend that a detailed agenda for the meeting be provided to all owners at this time. If the Board plans to go into closed/executive session, the agenda should also provide the statutory section that will be discussed and allows the board to go into closed/executive session [A.R.S. Section 33-1804(a) and 33-1248(a)].
2. Owners Can Attend and Talk at Appropriate Times during the Open Board Meeting: Open board meetings are open to all members of the association. Owners are entitled to speak (however, the board can place time restrictions on their comments) before the board takes formal action on an item under discussion at the open board meeting. When the board is discussing association business, it may be necessary to mute owners so they do not interrupt the discussion. Most videoconferencing software like Zoom allows the organizer the power to “mute” owners when it is not the appropriate legal time for the owners to talk during the meeting. If a high volume of owner comments are expected at a board meeting, some associations ask members to submit their comments in advance of the board meeting via email, and then the board reads those comments at the meeting or acknowledges receipt of the comments at the meeting. We’ve also seen owners make comments on the chat function of a teleconference meeting during the meeting (the Board should try to acknowledge receipt of these comments during the meeting so that owners feel heard).
3. Executive/Closed Sessions of the Board: Executive/Closed sessions of the board occur when only the board (and a guest, like the manager or attorney) are present for discussion of association business. The most common topics for executive/closed sessions of the board are legal advice for an attorney for the board or the association, collection of delinquent assessments, violations and job performance of association employees of independent contractors. If the board has executive session business to discuss, I recommend that the board make an announcement at the end of the open session that it is going into closed/executive session, provide the statutory section that allows the board to go into closed/executive session [A.R.S. Section 33-1804(a) or 33-1248(a)], and then ask all non-board members to leave the teleconference or conference call. The call moderator should confirm that all non-board members have left the teleconference prior to discussing closed/executive session business. Alternately, a separate teleconference with a new log-in and password could also be started after the regular board meeting for just the board members.
4. Emergency Board Meetings: An emergency meeting of the board of directors may be called without 48 hours-notice to discuss business or take action that cannot be delayed 48 hours. The board may only act on emergency matters at the emergency meeting. The minutes of the emergency meeting shall state the reason necessitating the emergency meeting. The minutes of the emergency meeting shall be read and approved at the next regularly scheduled meeting of the board of directors.
5. Caution: Informal Board Meetings Must Follow the Open Meeting Law: Any quorum of the board of directors who meet informally to discuss association business, including at a workshop, must still comply with the open meeting and notice provisions of this section without regard to whether the board votes or takes any action on any matter at that informal meeting.
6. Danger Zone: Use of Email to Make Decisions of the Board: Arizona law is in favor of open meetings. Be careful about using email and/or unanimous consent to make board decisions. A quorum of the board should NOT be using email to discuss or make decisions on association business, and the use of unanimous consent in lieu of board meeting is potentially subject to legal challenge.
Please contact Beth Mulcahy, Esq. at bmulcahy@mulcahylawfirm.com if you have any questions on running legally proper virtual board meetings or if you’d like to conduct a boot camp for your board on running a legally proper virtual board meeting.
