The Davis-Stirling Common Interest Development Act has been amended to limit what the board of directors can discuss at open board meetings. Previously, there was no requirement that the board post or distribute an agenda or limit its discussion to items placed on the agenda. Effective January 1, 2008, the Legislature amended Civil Code section 1363.05, known as the “Common Interest Open Meeting Act,” to require that notices of board meetings contain the agenda for the meeting. With some exceptions, the board may not discuss or take action on any item that was not placed on the agenda. The exceptions fall into 4 main categories.
First, the limitation does not apply to emergency meetings. An emergency meeting can be called when there are circumstances that could not have been reasonably foreseen, require immediate attention and possible action by the board, and of necessity make it impractical to provide the required notice.
Second, the board may (A) briefly respond to statements made or questions posed by a non-board member about items that are not on the agenda, and (B) ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities, whether in response to a member’s question or based on his or her own initiative.
Third, subject to the board’s rules or procedures, the board may (A) provide resources for factual information to the association’s manager or other personnel, (B) request the manager or other personnel to report back to the board at a later meeting concerning any matter, (C) have a matter of business placed on a future agenda, and (D) direct the manager or other personnel to perform administrative tasks that are necessary to carry out these tasks.
Fourth, the board may take action on any item of business (A) upon a determination made by a majority of the directors present at the meeting that an emergency situation (i.e., circumstances that could not have been reasonably foreseen by the board, that require immediate attention and possible action by the board, and that, of necessity, make it impractical to provide notice) exists, (B) upon a determination made by two-thirds of the directors present at the meeting, or, if less than two-thirds of the directors are present, by a unanimous vote of the directors 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 with the notice of the meeting, and (C) when the item appeared on an agenda that was posted and distributed for a board meeting that occurred not more than 30 calendar days earlier, and during the earlier meeting action on the item was postponed to the meeting at which the action is taken. Before discussing any item pursuant to this fourth category of exceptions, the board must openly identify the item to the members in attendance at the meeting. Interestingly, examining the exact wording of the amendments to the Open Meeting Act leads to an anomalous result.
Under Civil Code section 1363.05(f), notice of a board meeting is not required when the time and place of the meeting is fixed by the bylaws. In limiting the board’s discussion and action to items placed on the agenda, the statute explicitly refers to the agenda required by section 1363.05(f) to be part of the notice of the meeting. Thus, the limitation seemingly does not apply when notice of the meeting is not given to the association members because the bylaws set the time and place of the meeting. However, such a result most likely was not the legislature’s intent, and the board should limit its discussion and action to the items on the agenda, regardless of whether the bylaws fix the time and place for the meeting, unless one of the exceptions apply.
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