COVID-19, Coronavirus: The Impact on Open Meetings
Many of our communities have asked whether it is permissible to conduct association business, particularly board meetings at which binding votes are taken, via e-mail or other similar means during the COVID-19, Coronavirus pandemic. The short answer is, no. Community associations are still required to follow open meeting requirements under the law. Governor Murphy’s Executive Order 107 simply precludes community associations from holding open meetings in person. For this reason, Becker is prepared to help you conduct your open meetings via conference call, Zoom or other similar means, as may be necessary. Please feel free to reach out to any of the attorneys in our Community Association Practice Group if you have any question or need assistance setting up a virtual open meeting.
Legal Obligation to Conduct Open Meetings
All meetings of the governing board of community associations at which binding votes are taken must be open to the membership pursuant to the requirements of the New Jersey Planned Real Estate Development Full Disclosure Act and the New Jersey Condominium Act. There are few exceptions: (1) matters the disclosure of which would constitute an unwarranted invasion of privacy (e.g. the discussion of an owner’s delinquency); (2) pending or anticipated litigation; (3) contract negotiations; (4) matters falling within the attorney-client privilege; (5) any matter involving the employment, promotion, discipline or dismissal of a specific officer or employee of the association; and, (6) work sessions, at which no binding votes are taken.
Penalties for Failing to Conduct Open Meetings
Community associations and their board members could face potentially severe consequences for failing to conduct open board meetings. Decisions made by a governing board, but not in an open meeting, could be declared invalid or unenforceable by a Court, which could result in personally liability for a board member. In addition, the New Jersey Department of Community Affairs may, amongst other legal remedies: (a) issue a cease and desist order (b) seek injunctive relief (c) seek the appointment of a receiver to replace the governing board, particularly if there are multiple violations, or (d) impose penalties up to $50,000 per violation against each person who violates the requirement. Thus, it is imperative that your community take the steps recommended below to hold open meetings virtually or via conference call.
Holding Virtual Open Board Meetings
While the Governor’s “Stay at Home” Executive Order prohibits the gatherings of individuals, it does not provide relief from the open meeting requirements for the governing body of a community association. Fortunately, the law permits community associations to hold open meetings via conference call, virtual meetings (e.g. Zoom, Go To Meeting, etc.) or closed circuit television, provided that the members of the association can “attend” the live meeting, in this case meaning view it in real time. The good news is, the law does not require participation of members in the meeting, or even the provision of a public comment session during open board meetings. Depending on the number of members who attend, conducting an “open forum” or “Q&A” could prove difficult during a virtual meeting. Accordingly, whether or not to do so is entirely at the discretion of the governing board.
Despite no legal requirement to allow for comment or questions from the membership, we still recommend that you do so, particularly if it is your association’s regular practice. There are creative solutions available to allow this in an orderly fashion, including: (a) submitting questions via e-mail prior to, during or after the meeting (b) for smaller communities, permitting live questions via conference call or virtual meeting (c) using the “Q&A” function on Zoom, or (d) having members contact management with any questions after the meeting.
We understand that these are difficult times for the governing boards of community associations to navigate. If needed, the attorneys in Becker’s Community Association Practice Group are ready and able to assist you and your community in holding virtual open meetings.
Becker New Jersey Community Association Practice Group is here for you.
If you have any questions about this or any other community association matter, please feel free to contact any of the attorneys in our New Jersey Community Association Practice Group.