Open Meeting Act: Is Your HOA Following This?

The Open Meeting Act is an important aspect of establishing an effective HOA. It may not apply to every homeowners’ association in the US, but it is worth understanding. The law has many implications for HOAs. Moreover, understanding it can be helpful to conduct more productive meetings.

What Is the Open Meeting Act for HOA Communities?

The Open Meeting Act, also known as the Sunshine Law or Government in the Sunshine Act, is a law that aims to boost transparency and accountability in governing bodies. It mandates all homeowners’ association meetings to be open to every member. This includes all HOA board and annual meetings. The Open Meeting Act for HOA communities serves as a way to ensure that members can observe how boards make decisions. But, the HOA Open Meeting Law is not a federal law so not all associations in the United States must follow it.

On the other hand, multiple states have different versions of the HOA Open Meeting Act. Some even have more specific rules relating to it. For instance, the state of California has comprehensive requirements regarding open meetings. The law allows members to attend board meetings that are not executive sessions. It also specifies that members are entitled to attend a teleconference or part of a teleconference meeting that is open to community members.

Meanwhile, the state of Texas requires all regular and special board meetings to be open to all members. The Texas Open Meetings Act posting requirements in Texas also mandates HOAs to release a public notice at least 72 hours before the meeting.

Some states have an open public meeting act that doesn’t apply to homeowners associations or condominiums. In such states, the act usually applies only to public or government bodies, which HOAs don’t fall under. A good example is the Michigan Open Meetings Act, which applies to certain public bodies.

It’s important for HOAs to check state meeting requirements. Each state is different and may vary in how extensively it fleshes out the law. HOA board members don’t want to be caught violating Open Meetings Act regulations and face liability.

Are Board Meetings Open to Public?

There are two things that dictate whether or not board meetings must be open to members: state laws and the governing documents. As explained above, several states require HOAs to conduct open board meetings. There are also notice and procedural requirements.

However, if state laws are silent, an HOA should then turn to its governing documents. More often than not, the bylaws of an association will stipulate whether or not board meetings should be open to members. Additionally, these bylaws should dictate whether members of the general public can also attend.

What Is the Penalty for Violating the Open Meetings Act?

Open Meetings Act violations have different consequences based on location. In some states, like Pennsylvania, members may be allowed to file a complaint. Meanwhile, HOAs in California can go to court for injunctive relief. They may also face civil penalties of up to $500 per violation.

Are Executive Sessions Exempt from the Open Meetings Law?

A board meeting has two parts: the open and closed session. The open session is where HOA members can attend and discuss with the board. It may also host an open forum. Meanwhile, the closed session is called an executive session. These executive sessions are only open to specific owners and usually occur before or after open board meetings. Moreover, they can sometimes include the HOA manager.

Executive sessions are private and discuss sensitive topics like issues with litigation, delinquent accounts, or personnel. A confidentiality breach resulting from these meetings can be a serious issue as these topics are classified. The HOA board is not required to open these meetings to everyone. In fact, some states have specific provisions for these, like California’s Civil Code Section 4935.

On the other hand, the HOA board is generally not allowed to conduct private meetings outside of an executive session. Some states even prohibit these “working” meetings altogether.

Does the Open Meeting Act Apply to Committee Meetings?

In general, the Open Meeting Act does not apply to committee meetings. Most statutes require only board meetings to be open to members. If state law and the governing documents stipulate that committee meetings must also be open, though, then committees must certainly comply.

It is best to conduct compliance meetings to ensure that your HOA stays out of legal trouble. At these meetings, you can evaluate whether your annual, board, and committee meetings are being held according to state laws and your governing documents.

How Does the Open Meetings Act Affect Members?

Depending on your association’s governing documents and state laws, the HOA board can decide certain things. For example, they can generally hold board meetings, enter into management contracts, and create or approve financial reports. Usually, they are also free to buy some types of HOA insurance.

However, the HOA board is normally required to consult homeowners on other matters. For instance, they need a membership vote to elect and remove board members. They also do not have the authority to independently alter the governing documents. Furthermore, some states require a vote if the HOA board plans to increase regular assessments above a certain percentage.

If the HOA board makes unilateral decisions on these items, they may violate the Open Meetings Act. Depending on state laws, homeowners can then file a complaint or bring them to court. Members can also take action if the board does not follow related regulations. These include, but are not exclusive to, the following:

Sending members an advanced notice about an upcoming meeting within the timeframe specified in the governing documents
Providing members with an opportunity to speak at board meetings
Allowing all homeowners to attend the board meeting
Keeping discussions related to the agenda within board meetings only

How to Conduct HOA Open Forums

It’s generally a good idea for HOAs to conduct open board meetings even if they’re not bound by the Open Meetings Act. Doing so lets homeowners provide feedback and give comments to the board. It acknowledges their agency and boosts homeowner satisfaction in the community. Moreover, it promotes a sense of transparency in both the financial and executive decisions the board makes.

Of course, open meetings should still be organized. If everyone speaks all at once without proper structure, the meeting may devolve into chaos. This hinders productivity and can make board meetings ineffective. One good solution to keep open meetings organized is to have an open forum. Here are some guidelines for conducting an effective open forum.

1. Designate a Timeslot

The law doesn’t specify when HOAs should hold open forums so HOAs are free to decide when they happen. Many HOAs hold it at the start or end of the meeting. The former allows the board to listen to homeowner comments on agenda items before discussion. However, residents may also be prone to raising issues outside of the agenda which can distract the community. It’s up to the HOA to decide which is best.

2. Set a Duration

The law only states that HOAs impose a “reasonable” time limit to open discussions. As such, the HOA may decide how long each speaker can talk during an open forum. Associations usually allow 1 to 2 minutes per person. This gives members reasonable time to comment without prolonging the meeting too much.

3. Stay on Topic

The HOA board is allowed to restrict board meetings to certain agenda items. This lets the homeowners’ association focus on important matters and stay on track. It keeps homeowners from rambling or divulging private information not meant for discussion.

4. Implement Rules To Keep Things Organized

Attendees should be respectful and refrain from making hurtful comments during the meeting. The board can limit disruptive behavior by forbidding interruptions when someone else is speaking.

Should the Board Respond to Member Questions and Comments?

Open forums help bring concerns and questions to the forefront, but the board does not always need to respond. In fact, it can be dangerous to always answer questions and comments because the board might make impossible promises. Instead of responding immediately, the board can add the items to the next meeting’s agenda or discuss them in private if necessary.

Regardless of the homeowners’ comments, the board must remain calm at all times. Some homeowners might strike a nerve on purpose to draw attention or get a reaction from the board members. However, it’s best to keep an open mind and listen calmly even if homeowners criticize the board. It’s a natural part of serving as community leaders.

Establish Open Communication

It’s vital for HOAs to follow the Open Meeting Act. The law not only enacts penalties for violations but also encourages transparency and clear communication. It makes homeowners more familiar with community issues and keeps them involved.

HOAs may find it difficult to understand the Open Meeting Act and all its legal requirements. Clark Simson Miller can help. Call us at 865.315.7505 or get in touch with us online to learn more!

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