A&A: Are the Board of Directors of our Apartment Complex subject to the Brown Act?

Are the Board of Directors of our Apartment Complex subject to the Brown Act?

Q: We are a tenant association in which we have been encountering regular difficulty in dealings with our Board of Directors.  HUD subsidizes our apartment complex, and the Board of Directors was formed in 1967 to govern the running of this complex.  They also were given a regulatory agreement in a contract with HUD, since HUD insures the note of the property.

There are nine members of the Board of Directors (one of which is supposed to be an elected tenant resident director), and we have been unable to get into any of their meetings for a number of years.  In denying tenants to their meetings they were successful in instituting an illegal lease addendum in which they required new applicant tenants to be Sac State students prior to entrance into the complex.  We only discovered this lease addendum because a former Assistant Manager released the information to the tenant association.

Upon us obtaining this information we retained legal counsel and were successful in having the Board of Directors rescind the lease addendum. The old tenant resident director was actually an appointee of the Board of Directors; it was the old Assistant Manager (not elected by the tenants).  When this Assistant Manager left, the seat became open and we immediately canvassed the tenants for signatures to put our legally elected representative on the Board of Directors.  They rejected our elected tenant, and continue to keep their meetings closed, or off-site, of the property.

We have also requested, in writing, the agenda (which they never post for the tenants to know about).  We (the tenant association) get no response to our requests for information of their next meetings.  We believe they are no longer conducting them on the property and we believe they have no intentions of allowing tenants to attend any of their meetings.

Their secrecy allows them to institute policies without tenant input, and as a result, they have in the past (as stated above) instituted illegal policies without our knowledge.  We were only lucky that the former Assistant Manager was sympathetic to our situation.

Our question is, how do we get the Board of Directors to conform to California law concerning their meetings?  We are a low-moderate income complex, so obtaining legal counsel concerning the Brown Act is financially difficult for us.  And we do not believe Legal Services of Northern California deals with such issues (only landlord/tenant law).
We have already written the District Attorney and the Attorney General’s Office but they have not responded.

Can you advise how we should proceed in order to compel the Board of Directors to conform to the California Brown Act with their meetings?

A: Your request seeks information about how to compel the board of directors at the Apartments to comply with California’s Brown Act.  The provisions of the Brown Act only apply to the legislative bodies of “local agencies,” which include “a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission, or agency thereof, or other local public agency.”  Cal. Gov. Code sec. 54951.  Your inquiry states that the Apartments are subsidized by the federal Department of Housing and Urban Development (HUD). The Apartments would not appear to be among the “local agencies” governed by the Brown Act by virtue of the fact that it is a HUD-subsidized complex.  It is possible that a local agency, such as a housing authority, also has involvement with the apartment complex, but we cannot tell from your email if this is the case.

We are not aware of any law similar to the Brown Act that would require the board to allow access to its meetings regarding the Apartments.  Many federal agencies themselves are, however, subject to the requirements of the Sunshine Act (5 U.S.C. 522b), which requires agencies to hold open meetings unless the agency decides a meeting should be closed under one of the exemptions defined by the act.

However, the Sunshine Act applies only to executive department agencies or to their subdivisions, and only when a quorum of the agency body is present and when that body has the power to and is conducting or deciding official agency business. It does not appear that this act would apply to board meetings of the apartment complex, although it may apply to HUD itself under certain circumstances. Further, HUD is subject to the requirements of the Freedom of Information Act, and it is possible that some records of the board pertaining to the Apartments could be obtained by making a FOIA request. The HUD website provides some information about this process:

http://www.hud.gov/offices/ogc/foia/.

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