By Neal McCulloh, Senior & Founding Partner, and Brian Hess, Partner

While there is a lot of discussion about associations endeavoring to postpone meetings so as to preserve social distancing and not potentially expose people to COVID19, also known as the coronavirus, ultimately, a limited number of meetings may not be able to be postponed.  These include some Board meetings, Committee meetings, etc.  As such, what precautions, if any, should your Association undertake in the event it needs to proceed with a meeting?  Additionally, what rights does your Association have to preclude members from attending in person an actual Board meeting, Committee meeting, or even an Annual meeting?  Ultimately, the law is not settled on such issues.  Nevertheless, it is imperative that everyone appreciate that ultimately what should be the highest concern (and, therefore should dictate how the Association handles a matter) should be predicated on the health, safety and welfare of the membership and all individuals similarly concerned.  Therefore, given the CDC’s information and the world-wide spread of the coronavirus, Clayton & McCulloh would not be surprised if Associations commence to conduct their Board meetings by phone conference, web-based telecommunications, etc.  Moreover, we would not be surprised, nor would we object, to our Association clients holding a meeting where potentially only the manager and/or the president are personally in attendance; all other Board members and members wishing to attend, choosing to attend by conference call or teleconference.  However, this begs the issue with respect to the membership (i.e., the owners choosing to attend).  What should the Association do in an effort to preserve the membership’s ability to attend Board meetings, as well as the membership’s ability to comment on matters discussed by the Board at Board meetings, etc.?  Ultimately, to the extent that the Association can hold a phone conference and/or other telecommunications with the Board of Directors, the Association may, likewise, be able to let the membership attend and participate in such phone conference and/or telecommunication.  Of course, this may be able to be done by conference call, and there are various services that allow multiple parties to call in.  Whether such services or the Association’s technology will permit this to be done may have to be evaluated on a case-by-case basis.  Of additional concern is the fact that the association need to reasonably and efficiently get through its business. Therefore, the Association may need to mute the membership’s participation (i.e., comments) during certain portions of the meeting while allowing for membership input at the appropriate time. 

What if it is impractical, if not impossible, for the Association to facilitate membership attendance and/or comments at Board meetings, etc.?  In such an event, a balancing may need to take place.  Stated more precisely, the Association may need to evaluate the need to proceed with making a decision and undertaking a course of action verses the right of the membership to attend and/or participate in such meetings.   In these instances, we do stress that, ultimately, the health, safety and welfare of the membership, as well as the other individuals who may otherwise be in attendance, should be taken into consideration.  We believe there should be a hierarchy of the Association’s obligations. In this instance, if the Association needs to proceed and must act; then, in that event, it may not be improper or unlawful for the Association to act, despite precluding the membership’s attendance and/or participation at a Board meeting.  However, if this occurs, every effort should be made to minimize the adverse impact on individual owners. As such, consider timely apprising the owners regarding how and why such Board meetings will be held, and the efforts of the Association to preserve and maintain their rights. As part and parcel to this, associations should endeavor to afford them input by another mechanism.  Please understand the Association may be able to accomplish this by virtue of advance notice to the membership of such a meeting occurring, solicitation of their input via e-mail, etc.

As we all recognize, guidance from governmental and non-governmental agencies is very fluid at the moment.  Your association will want to pay attention to guidance from local authorities and will want to remain flexible in its decision-making process in light of this crisis. Moreover, as each association’s facts and circumstances are different, you may want to discuss your options with counsel before embarking on a particular course of action.