04/15/2020 by Deborah M. Casey, CCAL® and Kathleen Panagis, Esq.
Our office has received numerous inquiries regarding whether and how boards of directors of Virginia community associations can meet the statutory requirements for open meetings and the “2-director rule” during the coronavirus pandemic with the Governor’s Executive Orders requiring social distancing and barring group gatherings of 10 or more people.
Open Board Meeting Requirement
The basic principle regarding board meetings for Virginia property owners’ associations and condominium associations is that all meetings of the board (including any committee or subcommittee meetings) where the business of the Association is discussed or transacted shall be open to all owners of record, and boards shall not use work sessions or other informal gatherings to circumvent the open meeting requirements. See Va. Code §§ 55.1-1816(A), 55.1-1949(B)(1). The only time boards, committees and subcommittees may meet behind closed doors is if boards properly convene and executive session for one of the limited, statutorily-permitted reasons. See generally, Va. Code §§ 55.1-1816(C), 55.1-1949(C). In furtherance of the open meeting requirement, notice of the time, date, and place of each board meeting must be published where it is reasonably calculated to be available to a majority of owners. See Va. Code §§ 55.1-1816(B); 55.1-1949(B)(2).
Despite the open meeting requirement, both the Virginia Property Owners’ Association Act and Condominium Act permit boards to conduct meetings electronically by telephone or video conference or other electronic means, so long as:
- at least two board members are physically present at the meeting place included in the meeting notice, and
- the audio equipment is sufficient for any member in attendance to hear what is said by any board member participating in the meeting who is not physically present.
Impact of Executive Orders
While it would seem like Virginia’s State of Emergency and the Governor’s Executive Orders would justify not having two board members present, there is no executive, judicial or legislative order in place that overrides or suspends the statutory requirement to have two board members physically present at the meeting place included in the notice. Accordingly, if a board meets while these orders are in place, it must and can still satisfy the statutory requirements to (1) be open to all members and (2) have at least two board members physically present at the meeting location.
The board meeting could take place on the association’s common area (e.g. clubhouse, conference room, lobby, parking lot, end of a cul-de-sac, etc.) or otherwise outside (an owner’s driveway or front yard). The two board members physically present should social distance (at least 6 feet) and no more than 10 persons total may be present (inclusive of the board members, management, and community members) and all persons should maintain at least 6 feet distance from each other. If the board meeting occurs inside, arrange furniture to enable social distancing, sanitize the space before and after, require attendees to wash their hands or provide hand sanitizer, and encourage the use of face masks to comply with the Governor’s Executive Orders.
Whether the board meeting is held indoors or outdoors, all attendees can participate by teleconference or video conference or other electronic means, such as Teams or Zoom, provided that the members who participate electronically can hear what is said by all board members. The meeting notice should include the video- or teleconference call-in information.
Electronic Meeting Logistics
Boards should consider adopting a resolution addressing how the video or conference call will work, including special instructions for the statutorily-required owners’ forum (e.g. how questions or comments will be received in advance or during the meeting, time allotment, etc.). In addition, boards should consider the logistics of executive sessions that may require a separate and secure meeting to limit “attendance” to board members.
Board Action Outside a Meeting
Taking action in meetings is the best way to conduct business. It allows for debate and discussion and more informed decisions. It satisfies transparency and permits a homeowners’ forum. If a meeting cannot occur, whether for health concerns, technological reasons, or otherwise, a board may still be able to act without a meeting if the documents (usually the bylaws) permit. Action without a meeting requires unanimous written consent. This means that every director must agree to the action, and it must be in writing. Any action taken by a board in this manner needs to be addressed at the next board meeting, ratified, and included in the minutes.
If you have any questions about how a board continues to conduct business during the pandemic, call your association attorney. Vandeventer Black has a knowledgeable and experienced team of community association attorneys. Please contact us if we can provide guidance, draft policies and help navigate these extraordinary times. Vandeventer Black has technology and resources in place to provide responsive and effective legal services, even as we work from home.
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About the Authors
Deborah M. Casey, CCAL® is a partner with Vandeventer Black.
She serves on the firm’s Executive Board and Chairs its Community Association law practice. For more information, please contact Debbie firstname.lastname@example.org.
Kathleen is an Of Counsel for Vandeventer Black and a member of the firm’s Community Associations team. She serves as general counsel to homeowner and condominium associations located in Virginia, which essentially operate as hybrids of non-stock corporations and mini-city governments.