Given the worldwide coronavirus pandemic, many states have issued stay-at-home orders, and taken action to limit public gatherings. Given this sudden and extraordinary legal change, many community associations are facing difficulty in scheduling their meetings (annual and special meetings of members). Specifically, many community associations are facing the logistical challenge of conducting these meetings, via remote or electronic means, to accomplish community association business, minimize legal and health risks, and comply with the various stay-at-home orders.
2018 Legislative Changes to Remote Meeting Requirements
Before transitioning all meetings to remote or electronic means, community associations need to be careful and discuss the issue with their counsel to develop a workable plan. Back in 2018, we previously posted about a recent legislative amendment enacted by Virginia’s General Assembly permitting remote meetings under certain circumstances. The law has been codified as Virginia Code Section 13.1-844.2.
Under that statute law, nonstock corporations (which many community associations are) may conduct annual and special meetings of members via electronic means, provided that the governing documents (articles of incorporation and bylaws) do not require the meetings to take place at a particular location.
One key caveat is that second (underlined) clause, regarding the meetings not being required to take place at a particular location. Under the statute, assuming that the governing documents do not require the meetings be held at a particular place, the board has the authority to permit such meetings to be held remotely, and to permit remote participation and communication of the members in such meetings. Additionally, the board has the authority to adopt guidelines and procedures relating to such meeting issues.
Assuming the statutory requirements for a remote meeting are met, the community association must still take reasonable action to (i) verify that each person participating remotely is a member or member’s proxy, and (ii) provide members a reasonable opportunity to participate in the meeting and vote on the matters submitted to the owners.
One key concern is that many community association governing documents (articles of incorporation or bylaws) require that meetings take place at a certain location (for example, the community clubhouse or other local building). If the governing documents provide that the meetings are to be held at a certain location, then community associations should not simply conduct the meetings on a solely remote basis.
A reasonable way to proceed under those circumstances is to continue to conduct the meeting at the called-for location (subject to the caveats below), while providing remote access to the members, and encouraging members to attend via remote means (as opposed to in-person attendance). For example, the board of directors, community manager, and attorney could be present at the called-for location, with the remaining members all dialing-in to the meeting remotely.
If a member does not have the capability to participate remotely, or simply does not wish to participate remotely, the community association needs to make a reasonable accommodation for such member to conduct business with the community association without use of such electronic means.
In other words, it is a best practice for the community association to still have some persons present at the called-for physical location of the meeting, while, of course, complying with all applicable stay-at-home orders, social distancing requirements, CDC guidance, increased cleaning, etc. If members do attend, it is important to require adequate social distancing and limit the number of persons to no more than permitted under the state’s or locality’s executive guidance (if any).
UPDATE: Recent Virginia General Assembly Legislative Changes to Remote Meeting Requirements during Periods of Declared Emergency
In light of the practical difficulties surrounding community association meetings during this time, Virginia’s General Assembly recently acted to provide some relief.
Under this new legislation, public bodies and community associations may meet via electronic means only, without a quorum of the body assembled at a location, when the Governor has declared a state of emergency. Community Associations may do this as along as (i) the declared emergency makes meeting in one place impracticable or unsafe, (ii) the meeting’s purpose is to discuss or conduct community association business, and (iii) the community association makes available to members the recording or transcript of the meeting, and (iv) the board of directors distributes the minutes of such meeting in the same manner used to provide members with notice of the meeting.
A community association must also give notice of the electronic-only meeting to the members using the best available method under the circumstances of the emergency (at the same time as the notice is provided to members of the Board conducting the meeting), and (ii) make arrangements for members to access the meeting via electronic means (and videoconferencing, if practical) while allowing members the opportunity to comment.
The new legislation also requires community associations to record in the minutes (i) the nature of the emergency, (ii) that the meeting was held by electronic means, and (iii) the type of electronic means used.
It is important to note that these new options/requirements apply only under certain limited circumstances when a state of emergency has been declared by the Governor.
Given the uncertain duration of the pandemic and the real health concerns at risk, community associations should work with their counsel to develop a working strategy for handling remote access to meetings.