Social distancing necessitated by COVID-19 has caused many community associations to temporarily delay or postpone homeowner meetings and meetings of the association’s Board of Directors. As times begin to return to some semblance of normal, holding virtual meetings using online platforms including Zoom and Webex has gained in popularity. Such technology has allowed associations to continue to operate and conduct their business during these unprecedented and difficult times. This article discusses some general issues for associations to consider when holding virtual meetings.
The Colorado Revised Nonprofit Corporation Act provides authority for homeowners to participate in meetings through the use of “any means of communication by which all persons participating in the meeting may hear each other during the meeting.” Homeowners participating in a meeting by such means are deemed to be legally present “in person” at the meeting. However, this provision further provides that this general authority is subject to any limitations or restrictions contained in the organization’s bylaws.
Therefore, the following is a list of issues and questions for community associations to consider prior to holding virtual homeowner meetings:
- Are there restrictions in the association’s governing documents and can the association comply with those restrictions and any related requirements in the association’s meetings policies? Are amendments to the bylaws, policies, or procedures needed?
- The Colorado Common Interest Ownership Act (and likely the association’s bylaws) require that the notice for any homeowner meeting include the time and “place” of the meeting. Although the meeting notice for a virtual meeting will include the zoom sign-on information, the statute suggests that a physical location is required. Therefore, we recommend the physical location of the host or chair of the meeting be included in the notice and the notice clarify if homeowners can physically attend at that location or if attendance is limited to virtual attendance.
- How will the association determine who is logged on and therefore “present” at the Zoom meeting? There may need to be a roll call or other procedure so the association can determine who is present at the meeting and if the association’s quorum requirements are satisfied.
- How will proxies be handled? There will likely need to be some type of submittal process established so they can be received and reviewed by the association prior to the meeting.
- How will voting take place? Voting on issues such as the budget ratification (especially if there are insufficient homeowners present to veto the budget) and voting in uncontested director elections could be handled by roll call on a virtual meeting. However, what if the director election is contested or secret ballots are otherwise required? This may require candidates be given an opportunity to address the membership on the virtual meeting, but that the election be subsequently conducted by mail using the statutory written ballot process. Voting and ballot issues can be tricky and should therefore be discussed with legal counsel to ensure that the vote is conducted in compliance with the governing documents and applicable law.
- Who will conduct the meeting and how will minutes be handled? Knowing the controls and features of the platform will be critical so that screens can be shared, individuals are given the floor and allowed to speak, interrupters can be muted, questions can be asked using chat features, and all homeowners can hear one another.
- The Colorado Common Interest Ownership Act requires that an association maintain ballots, proxies, and other records related to homeowner voting for at least one year after the election, action, or vote to which the documents relate. These requirements will apply to virtual meetings so make sure such documents are preserved in the association’s records and available for future homeowner review.
Meetings of the Board of Directors
Likewise, the Colorado Revised Nonprofit Corporation Act also provides authority for directors to participate in Board meetings through the use of “any means of communication by which all directors participating may hear each other during the meeting.” Directors participating in a meeting by such means are deemed to be legally present “in person” at the meeting. Just like the provision pertaining to homeowner meetings, this provision also provides that this general authority is subject to any more specific limitations or restrictions contained in the organization’s bylaws.
Therefore, the following is a list of issues and questions for the board to consider prior to holding virtual meetings of the board of directors:
- Review the association’s governing documents and bylaws. Are there any restrictions or procedural requirements for virtual meetings? If so, are amendments needed to allow for such meetings?
- Except for limited executive sessions, meetings of the board of directors are required to be open to homeowners. How will the association provide notice to homeowners and make agendas available to homeowners so that interested homeowners can attend?
- How will the board allow homeowners to comment on matters under consideration by the board prior to the board vote?
- Who will control the meeting in terms of muting attendees who are not intended to speak and/or providing uninterrupted time for those speaking?
Virtual meetings can be effective and allow associations to continue to operate during these difficult times. However, there are various pitfalls and thoughtful planning must be given to ensure that such meetings comply with both applicable law and the association’s governing documents. If you have questions, need assistance preparing a virtual meeting policy, or would like to further discuss online meetings please contact an Altitude Community Law attorney at 303.432.9999 or email us at [email protected]