RECORDING BOARD MEETINGS

The Los Angeles Times ran a column in which the authors expressed their opinion that owners have a "right" to audio and video record board meetings. I disagree. The authors based their argument on their own analysis of statutes and case law and concluded that (i) recording is not prohibited and (ii) board meetings must be open to the public; therefore, owners have a fundamental right to record meetings. Their analysis is flawed.

Open Meeting Act. Contrary to the opinion of the authors of the article, the Open Meeting Act does not allow the general public into board meetings. According to the Act, members of the association may attend board meetings and address the board; it has nothing to do with the general public. Civil Code §1363.05(b) Clearly, there is no expectation of privacy in open meetings of the board; however, that does not preclude associations from establishing rules for their membership-only meetings that include restrictions on taping.

Negative Aspects of Taping. Owners who bring tape recorders or video recorders to board meetings often do so because they are threatening litigation or wish to intimidate participants into silence. Sometimes, they will have a lawyer sitting at their side as they tape the meeting. Under such conditions, participants are often reluctant to speak freely for fear of being dragged into litigation or having their voices appear on an internet website. As a result, members' free speech rights are suppressed by the person doing the taping. For these reasons, many boards prohibit taping by members. It should be noted that most judges prohibit taping in their courtrooms so as to avoid the disruption caused by taping. Boards can record their own proceedings for the purpose of preparing minutes either mechanically or electronically, but prohibit 3rd parties from doing so. Associations can also broadcast their meetings if the wish.

Brown Act; First and Fourth Amendments. The Brown Act and the First Amendment are frequently cited by people (including some lawyers) in support of taping. Neither the Brown Act nor the First Amendment to the U.S. Constitution gives owners the right to record meetings. The Brown Act applies to governmental agencies, not community associations. The First Amendment applies to governmental restrictions on free speech and has nothing to do with recording private meetings. Similarly, the Fourth Amendment to the U.S. Constitution cited by the authors has nothing to do with private organizations--the amendment protects governmental restrictions on free speech.

Penal Code §632. The Penal Code makes it a crime to record confidential conversations without the other person's consent. However, it does not apply to open board meetings or to membership meetings. Such meetings are considered public forums for free speech purposes. (see Damon v. Ocean Hills; Penal Code §632) As a result, recording a board or membership meeting does not violate the Penal Code. Even so, recordings that are not subject to penalty under the Penal Code can still be subject to private restrictions. For example, the county may allow 3 dogs per household but an association can still restrict households to 1 dog. The same applies to recording meetings; what is permissible by the state can still be restricted by an association.

Executive Session. It should be noted that executive sessions of the board are subject to different expectations. Those who attend such meetings have a clear expectation that their conversations are confidential. Accordingly, any surreptitious taping of such meetings would likely be a violation of the Penal Code, despite any contrary opinions expressed in the Los Angeles Times.

Adopting Rules. Boards and committees have the authority to create reasonable rules of conduct for their meetings, such as restrictions on recording, prohibiting foul language, etc. The authority to adopt rules is normally found in the CC&Rs and oftentimes in the Articles of Incorporation and bylaws. The power to adopt rules has been upheld by the courts. Rancho Santa Fe Assn. v. Dolan-King. If boards and committees adopt rules of conduct for their meetings, the rules should be printed on their meeting agendas. Prior to adopting such rules, boards must submit the proposed rules to the membership for review.

Adrian Adams

Updated by ADAMS KESSLER 7/9/2008