Open meeting law and homeowners associations
Q: I own property at a lake, a managed community with a HOA. Since inception, the community has had several amenities including a golf course, lake, tennis courts etc. Since inception, waterskiing has been allowed on the lake, although the hours of operation have been continuously limited over the years.
2 years ago, a group of homeowners got together and tried to reduce the number of ski hours by over 30%. Those of us who wanted to protect our amenity got together and fought for our rights. The end result of that effort was a compromise Resolution between the two factions that was later ratified by the board.
The following year, the anti-skiing faction collected usage statistics and tried to approach the board about future reductions. The board last year declined to hear it and put them off a year
At the last year’s board election, 2 members of the anti-ski faction ran for election to the board of the association. Since there were only 2 candidates and 2 slots open, both gentlemen were elected to the board without notification to the general population. The first time we found out who had decided to run for the election was the day we were told they had won the election. They now have a 3/5 majority on our board.
This year, with no notice from the board or the anti-skiing faction, we noticed a Presentation on the Board agenda for last Saturday’s meeting entitled “Equitable Use of the Lake”. A few of us managed to attend the meeting. The anti-ski faction presented their usage statistics and then surprised us (and a couple of the board members) by introducing a Draft Resolution” to reduce the number of ski hours by over 30% (same position they took 2 years ago). The board voted and agreed to accept the Draft Proposal for review and to start the 30 day publication and comment process.
We feel that we were sneak attacked and that there is a possibility that some laws were broken or at least bent in this process. First of all, since the official PML website is under construction, the official Agenda was not posted there. We only saw the agenda thru a 3rd party website.
Second, the agenda did not contain the fact that a draft resolution was being sponsored by a board member and going to be voted on (to start the process). The only thing mentioned on the agenda was the notification of a homeowner presentation on lake usage.
Lastly, one of the new board members lives on the lake in very close proximity to the ski area and has been a vocal opponent of skiing. The area he lives in is know for being hit by ski wakes and his these properties stand to go up in value if skiing is reduced or eliminated. It would seem that this board member has a conflict of interest that should be declared and he should abstain from any votes on this matter.
A: With respect to the website, agenda notices need only be posted in some place “freely accessible to members of the public” under Government Code section 54954.2. There is no requirement that this location be the PML web site.
However, based on your description, it sounds like the agenda may not have provided adequate notice. The Court of Appeal has held on several occasions that a brief general description (like notification of a homeowner presentation on Lake Usage) is not sufficient to give notice that specific action (such as a specific resolution limiting use) would be discussed and voted on.
For an item that did not properly appear on the agenda, you can bring a lawsuit seeking to void the action taken under Government Code section 54960.1. However, you must first submit a written notice of alleged violation and demand to cure (typically within 90 days of the meeting at issue), after which the board has 30 days to respond. Upon expiration of that 30-day period with no written response, or upon receipt of a written response refusing to cure or taking action you deem insufficient to cure, you have 15 days to file a lawsuit to void the initial action taken.
As for the board member who lives on the lake, conflict of interest issues are beyond the scope of this hotline but, as a general matter, the potential economic impact may be too tangential to qualify as a legally cognizable conflict of interest.