Homeowners Associations Prohibition on Videotaping
Q: The Board of Directors of my Homeowners Association has passed a new rule (in an open meeting and after a 30 day notice) to prohibit taping of Board Meetings by members of the HOA. It is not clear whether “The Brown Act” applies in this case. I do not know how to determine if “The association is (was) created by an elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body.” I do know that the association maintains the many streets that services the 126 member individual single resident homes that comprises our community. I also know that the association is a nonprofit mutual benefit corporation organized under the Nonprofit Mutual Benefit Corporation Law.
Is our association subject to the Brown Act? And independent of the Brown act, is the new rule legal and enforceable?
A: If the homeowners association is entirely private, which is typically the case with homeowners associations, it is under no obligation to follow the mandates of the Brown Act. As you seem to know, under Government Code section 54952(c), the governing body of a homeowners association would be subject to the Brown Act under either of two circumstances:
1. The association is created by an elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body;
– OR –
2. The homeowners association (a) receives funds from a local agency (e.g., a county, city, town, etc) and (b) the membership of the governing body of the homeowners association includes a member of the legislative body of the local agency (e.g., if the agency is a city, a member of the city council) whom the legislative body appoints to the governing board of the homeowners association as a full voting member.
You should be able to determine whether the homeowners association is receiving funding from a local agency by reviewing its financial statements. Also, you should be able to determine if a local agency has the right to appoint a member of the board of directors by reviewing the association’s bylaws, internal governing rules or articles of incorporation. (The articles of incorporation, if they exist, are also available from the California Secretary of State.) If both of those conditions exist, the homeowners association is subject to the Brown Act and its open meeting requirements.
As to whether the association was “created by” an elected legislative body, this can be more difficult to determine. California case law indicates that, for example, if a city creates a special local assessment district, collects assessments from local property owners, and provides by ordinance that the programs paid for with those funds will be governed by a non-profit association, the non-profit corporation set up to govern those programs will be subject to the Brown Act. (This example comes from a case called Epstein v. Hollywood Entertainment District II Business Improvement Dist., 87 Cal. App. 4th 862 (2001).) You should look for some kind of direct involvement by the city or another local government agency in the creation of the homeowners association, such as an ordinance that calls for its creation. In addition, the articles of incorporation, internal governing rules and/or bylaws of the association may provide evidence that the city, or other government entity, was responsible for its creation.
Assuming the association is subject to the Brown Act, the association cannot prohibit a member of the public from taping its meetings. Government Code section 54953.5 provides that “any person attending an open and public meeting… shall have the right to record the proceedings with an audio or video tape recorder or a still motion picture camera in the absence of a reasonable finding … that the recording cannot continue without noise, illumination, or obstruction of view that constitutes, or would constitute, a persistent disruption of the proceedings.”
With respect to your question on whether the homeowners association’s new rule prohibiting taping of its board of directors meetings is legal and enforceable if the association is not subject to the Act, unfortunately, this issue is beyond the scope of the hotline. You might consider speaking to an attorney regarding this matter. Below is a link to the website for the State Bar of California, where you can find information about attorney referrals:
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10182