On September 23, 2021, Governor Newsom approved Senate Bill 391 that allows an association to hold board meetings entirely by teleconference, so long as it meets certain requirements. It was drafted as an urgency bill and so it took effect immediately after being approved by the Governor. SB 391 amends Civil Code Section 4090 and adds a new Civil Code Section 5450.
Civil Code Section 4090, as amended, contains two definitions for the term board meeting. First, a board meeting is defined as a congregation of a sufficient number of directors to establish a quorum of the board where all directors meet together at the same time and place. Under this definition, the board of directors meets in person at a designated location, such as an association's clubhouse or pool side.
Second, Section 4090 defines a board meeting alternatively as a teleconference of a sufficient number of directors to establish a quorum of the board where directors are in different locations and where they are connected by electronic means, through audio or video, or both. A board may meet in executive session entirely by teleconference under Section 4090. However, in order to have an open board meeting by teleconference, an association has to identify at least one physical location so that members may attend in person. In addition, an association must have at least one director or a person designated by the board (such as a manager) present at that location as well.
However, new Civil Code Section 5450 provides an important exception when it comes to conducting open board meetings by teleconference. More specifically, in the event meeting in person is unsafe or impossible because the association is in an area affected by a federal, state, or local emergency, then Section 5450 allows an association to hold an open board meeting entirely by teleconference without designating a physical location or having a director or designated person present pursuant to Section 4090.
Under Section 5450, an emergency exists in any of the following situations: (1) the federal government declares a state of disaster or emergency, (2) the Governor of the state of California proclaims a state of emergency under Section 8625 of the Government Code, or (3) a local governing body or official proclaims a local emergency under Section 8630 of the Government Code. It's important to note that Section 5450 requires the declared emergency be of such a nature that “…gathering in person is unsafe or impossible…” Thus, a statewide emergency due to a drought might not meet the requirements of Section 5450 because a drought might not make meeting in person unsafe or impossible.
Assuming that a state of emergency exists, then the association is required to meet four conditions. First, notice of the first meeting that is conducted for a particular disaster or emergency affecting an association must be delivered to members by individual delivery. Second, the notice for the first meeting, and for all following meetings during the disaster or emergency, must include specific information as follows: (1) clear technical instruction on how to participate by teleconference, (2) the telephone number and electronic mail address of a person who can provide technical assistance with the teleconference process, before and during the meeting, and (3) a reminder that a member may request individual delivery of meeting notices, with instructions on how to do so.
Third, Section 5450 requires that every director and member must have the same ability to participate in a meeting that would exist if the meeting was held in person. Fourth, any vote of the directors must be conducted by a roll call vote (i.e., when voting, each director is called by his or her name and the vote with each board member's name is recorded into the minutes). If an association meets these requirements, then it will have complied with Section 5450 in holding an open board meeting entirely by teleconference.
While some associations have opted to hold open board meetings entirely by teleconference under Section 5450, others are holding hybrid board meetings (i.e., a mixture of members attending in person and by teleconference). Although not required by California law, it's probably a good idea for associations holding hybrid meetings to follow the same notice requirements of Section 5450 and to conduct voting by a roll call vote.
