By Melissa M Garcia, Altitude Community Law
When I was a little girl, one of my favorite cartoons was The Jetsons. I loved watching all that awesome technology like the flying cars, Elroy’s cool jetpack, and Astro’s treadmill. The Jetsons seemed to be a great predictor of technology today. Maybe we’re still a few decades from jet packing to school, but what about Rosie the robot (Roomba anyone)? Or George calling Mr. Spacely on his watch (aka the smartwatch)? Or Jane’s futuristic food making machine (did you know that NASA can now 3D print pizzas in space)?
One particular Jetsons-predicted technology is the subject of this article: the virtual meeting. Three years ago, the thought of conducting an annual HOA meeting entirely online would have been unthinkable. Today it is mainstream.
So why did virtual meetings become the norm? The pandemic of course. In 2020, social distancing requirements were in place on both state and local levels, with the number of attendees restricted for indoor events. The fear of contracting an easily contracted disease also forced us indoors. And yet, business had to be conducted. So, face to face meetings were forced to go virtual.
Two years later, not only have we become quite proficient in using Zoom, Microsoft Teams, and other virtual meeting apps, but we’ve come the realize the benefits of conducting virtual meetings. To name a few:
- Higher attendance rate: We don’t have to carve time out of our busy schedules to drive to an in-person meeting.
- Accessibility: We are no longer restricted by location. Remote HOA meetings are more convenient because we can attend from anywhere.
- Better participation: With in-person annual meetings you could have a full house but very little participation. With the virtual setup often comes better engagement. The cameras are off (and, thus, the pressure is off), so those who wouldn’t typically speak up at a public meeting are encouraged to be more involved. And some are more comfortable expressing themselves when they’re in a familiar environment, such as from home or the office.
- Reduced costs: Remote HOA meetings help save money by cutting travel expenses, meeting room expenses, etc.
(Other indirect benefits? No need for makeup. Heck, no need for pants. And that oh so lovely MUTE button.)
But we must also acknowledge some of the cons of conducting a virtual meeting, such as:
- Fewer attendees: For those who choose not to become virtual meeting proficient, we lose participation.
- Less engagement: After the first 10 minutes your mind starts to wander, you become distracted, you start sending emails and multi-tasking. Limited attention span is a definite possibility.
- Technology problems: We continue to have technological problems such as connection issues, frozen speakers, the “you’re still on mute” and “I’m not a cat” phenomena. You could call them the modern day seances (“John…are you here?” Make a sound if you’re here. We can’t see you but we can hear you.”)
- Video call fatigue is real! The feeling of being worn out by endless virtual meetings can hinder rather than foster productivity. And virtual meetings arguably dampen brainstorming. We are so hyper-focused on the face in that box our minds might not think as clearly or as creatively.
Even with such cons, most likely virtual meetings are here to stay. So, we need to make sure we meet both the legal and practical requirements of holding a virtual meeting, which are different depending on whether one is conducting a virtual Owner or Board meeting.
VIRTUAL MEETINGS FOR OWNERS
Authority to Hold a Virtual Owner Meeting
Currently, neither the Colorado Common Interest Ownership Act (“CCIOA”) nor the Colorado Revised Nonprofit Corporation Act (“Nonprofit Act”) expressly authorize a “virtual” meeting. But that’s just because the law hasn’t caught up with technology, at least in terms of terminology. For Owner meetings, C.R.S §7-127-108 of the Nonprofit Act provides:
Unless otherwise provided in the bylaws, any or all of the members may participate in an annual, regular, or special meeting of the members by, or the meeting may be conducted through the use of, any means of communication by which all persons participating in the meeting may hear each other during the meeting.
In the above provision, the method of communication (whether in-person, telephonically, or virtually) is not as important as that all participants must be able to hear each other during the meeting.
With respect to a virtual meeting, everyone can hear each other if they have audio on their computer or mobile device. So, conducting a virtual Owners meeting should be allowed under the Nonprofit Act, as virtual platforms allow everyone to hear each another.
But if a participant uses the chat box vs. speaking out loud, you are not able to “hear” their commentary. If you enable the chat box feature, then simply have someone read the question or comment aloud. As far as allowing the chat box to be used at all is a different question, as it often leads to sidebar conversations, distracting commentary that is off topic, and other problems. It would be better to disable the chat box feature until certain portions of the meeting when Owner comments are appropriate, instead of throughout the meeting.
Finally, keep in mind that the Nonprofit Act defers to the Bylaws. If your Bylaws require all meetings to be conducted in person, or limit or prohibit certain types of communication methods for meetings, then you must follow such provisions. Better yet, amend them out so you can take advantage of the more flexible approach under the Nonprofit Act.
Notice of a Virtual Owners Meeting
There is no difference between legal notice for a virtual meeting vs. an in-person meeting. You need to meet the same requirements regarding timeframe for notice (notice but be sent no less than 10 no more than 50 days prior to the meeting), and delivery of notice (snail mail or hand-delivery, physical posting in the community if practicable and feasible, and email notice if you have the ability and if the Owner has requested email notice and given you their email address).
As far as what must be included on the notice itself, CCIOA provides: “The notice shall state the time and place of the meeting and the items on the agenda.” So, what is considered the “place” of a virtual meeting?
Some have argued that the place is the internet, and the address is the link provided for the meeting. Others include the management company or other host’s address as the place of the meeting, but make it clear that only virtual attendance is permitted. Again, while the law has not caught up with today’s terminology for virtual meetings, which do not have a physical address, the spirit of the statute is clear that if participants can hear one another, they should be able to meet.
Check-in at Virtual Owner Meetings/Submission of Proxies
While both in-person and virtual meetings have the same check-in process, virtual meetings tend to have more problems. Check-in at a physical meeting is relatively easy, as you’re sitting at a table verifying names and addresses against a list, and you’re physically exchanging proxies for ballots.
Checking in attendees at a virtual meeting could take a lot longer given its own unique problems. For example, attendees may have signed into the meeting using a mobile device that has a different name or no name at all, so verification is not as easy. Or someone could log on at the last minute with numerous proxies that must now be reviewed by the check-in person.
To prevent the above and other problems from happening, the Association should send out instructions well in advance of the meeting, and again as a reminder on the day of the meeting. You should provide for an earlier check-in time than normally used for in-person meetings, in case of technological problems. The instructions should provide the registration and link, user/password, clear instructions on how to log-in, and that attendees must sign in with their actual names (“my iPad” is not sufficient). You should keep individual participants in the lobby until their check-in is complete and their names displayed correctly.
In addition, your notice should ask for proxies to be submitted as early as possible to avoid delays at check-in time, even if the law allows proxies to be submitted up to the meeting time itself. Note that the law does not require hard copies of the proxies be presented. The attendee could email you the proxy, upload it to the chat box, take a picture and text it to you, or otherwise deliver it to you, as long as you can read the pertinent information.
Also, keep in mind that C.R.S. §38-33.3-317(1)(n) requires you to keep “ballots, proxies, and other records related to voting by unit owners for one year after the election, action, or vote to which they relate.” This applies to proxies submitted for all meetings, including virtual ones.
You might want to provide an email address and/or call-in number in case people have problems logging in. However, an attendee’s inability to log on or understand the technological aspects of the meeting does not prevent you from holding the meeting. It is the owner’s responsibility to become familiar with the virtual meeting app ahead of time; it is not your responsibility to ensure they are technologically proficient or that their computers or mobile devices are correctly set up.
Voting at Owner Meetings
The Association should review its Bylaws for voting procedures, as there may be a particular voting method that must be used. For the most part, however, Bylaws do not prescribe a specific method of voting, and you’re allowed to vote however you wish, including a show of hands, rollcall, vote via the chat box, use of polling, or other voting tools that might be allowed with the particular platform.
The one exception is the use of secret ballots. C.R.S. §38-33.3-310(1)(b) requires secret ballots to be used under two circumstances: (i) during contested elections (i.e., more people are running than positions open), and (ii) at the request of 20% of owners who are present in person or by proxy at the meeting.
So how does one conduct a secret ballot vote during a virtual meeting? At an in-person meeting you would simply use ballots that have no identifying marks of the person casting the ballot. But for a virtual meeting, you must preserve the secrecy and: (i) show that the attendee voted (for themselves and any proxies they held), (ii) without showing how they voted. Most regularly used virtual platforms cannot meet both foregoing requirements. So, unless you have the technology ready for such vote, which should be secured well in advance of the meeting, you cannot conduct the vote.
And what if you don’t know that a secret ballot is needed until the time for the actual vote? For example, nominations from the floor could cause a previously uncontested election to turn into a contested one, thereby requiring secret ballots. Again, unless you have the technology to conduct a secret ballot election, you cannot hold the vote. Instead, you should announce that no election can occur due to the election being contested and the ability to conduct a secret ballot vote, and that a separate vote will take place sometime after the meeting (whether at a later in-person meeting or by mail). However, you may still want to hold a “meet the candidates” session and record it. That way, if you are conducting a separate vote by mail, you can link to this session.
Unruly, Disruptive Owners at Virtual Owner Meetings
Unfortunately, disruptive and unruly attendees can occur at any meeting, virtual and otherwise. To combat this, the Board should already have in adopted a conduct of meetings policy pursuant to C.R.S.§38-33.3-209.5(1)(b). This policy sets forth the ground rules for the meeting. The rules could include, for example, only speaking when recognized by the chair, timeframe for speaking, only one person speaking at a time, no profanity, personal attacks, or shouting, etc.
The conduct of meetings policy is very important during a virtual meeting, as it is easier to interrupt, talk over one another, and sometimes get verbally abusive when you can hide behind the black box. If you believe a meeting is going to be heated, we recommend reading the ground rules at the beginning of the meeting, as a reminder to participants.
And yes, it is ok to mute the person who continuously interrupts. And yes, it is ok to kick the unruly participant out of the meeting and prevent them from rejoining the meeting. Be sure you have given them ample opportunity to comply with the rules and notate their name and disruptive behavior in the minutes, before removing them from the meeting. And, if you still need to vote on something, you may want to move them into the virtual lobby instead of removing them from the meeting entirely. Once you are ready to vote on an agenda item, allow them back into the meeting to allow them to vote.
VIRTUAL MEETINGS FOR BOARDS
Authority to Hold a Virtual Board Meeting
The Nonprofit Act language for holding a Board meeting is similar to that for Owner meetings. C.R.S §7-128-201 provides:
Unless otherwise provided in the bylaws, the board of directors may permit any director to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may hear each other during the meeting.
So again, if all directors can hear each other at the same time, they can conduct the meeting virtually.
Notice of a Virtual Board Meeting
The same notice that is required for in-person Board meetings is required for virtual meetings. Check your Bylaws for specific requirements, but typically no notice is required for Board meetings if the Board has already adopted a schedule for the year (e.g. the 1st Monday of the month).
However, if the schedule provides for in-person meetings, and you are switching to a Board meeting conducted entirely virtually, then obviously you must provide notice of such change to the directors. The Nonprofit Act provides for a minimum of least 2 days’ notice to directors if the Bylaws do not specify otherwise. Additionally, the law is much for flexible in providing notice to directors for Board meetings, in that neither mail or hand-delivery is required.
Currently the law does not require notice of Board meetings to be sent to Owners; however, C.R.S. §7-128-203(3) requires the Board to make agendas (to the extent created) available for Owner examination so they can determine whether they want to attend the meeting, whether it’s being conducted virtually or in-person. The same statute requires the Association to inform the Owners, at least annually, of the method by which such agendas will be made available.
Attendance of Owners at Virtual Board Meetings
C.R.S. §38-33.3-308(2) provides that all Board meetings to be open to Owners or their designated representatives, other than when in executive session. This applies whether the meeting is conducted in person or virtually. Therefore, should an Owner wish to attend a virtual Board meeting, you will need to provide them the link and the same instructions previously discussed with the Owner meetings (other than with respect to proxies), so you can verify their right to attend the Board meeting.
The Board has the right to mute all Owner participants at a Board meeting until the appropriate time. An Owner’s presence at a Board meeting is to observe only, not to vote, and to participate in a very limited manner. C.R.S. §38-33.3-308(2.5) requires the Board, prior to voting on any issue under discussion, to permit those Owners present to speak on the issue. Again, this applies to both in-person and virtual meetings. At its discretion, the Board may also allow an Owner forum during the Board meeting. However, other than with respect to the foregoing situations, Owners may be muted during the meeting.
Virtual Executive Sessions
Although Owners are permitted to attend Board meetings, the Board meeting may hold an executive session (i.e., closed session) to discuss information that falls within the categories of C.R.S. §38-33.3-308(4). Accordingly, if any Owners are attending a virtual Board meeting, the Board may move them into the virtual lobby while the Board meets in executive session, and then bring them back into the meeting once the executive session is complete.
The difficulty with virtual executive sessions is that you don’t know whether they are being conducted confidentially. You might have a rogue board member who is allowing a non-Board member to sit in on the discussion, outside of the viewing screen. Given this problem, it would be better for executive sessions to be held in person.
Last but not least, here are some general technology tips for your virtual Board or Owner meetings:
- Schedule and send out invitations well in advance
- Provide clear instructions on how to sign in
- Test equipment
- Use software that everyone’s comfortable with
- Remind people to test their connections
- Have expert on hand to handle technical difficulties
- Reboot your computer ahead of time
- Clear your desktop screen
- Don’t bring your laptop to the bathroom!!