 think-check away civil engagement lives here hello ha it's that time again time for condo insider the mighty show about living in an association about 38% of our population lives in an association and lots of owners and board members like to know more about doing a better job and that's what our show is all about I do want to take a moment and do a shout out to our police department first responders and fire department I've had to privilege the last let's say nine ten weeks of going to the Honolulu citizens police academy where you go through 13 classes and learn the challenges in this case of being a police officer I'm sure the firefighters and first responders have similar challenges but I can tell you from my experience our public safety we deserve or our police department deserves a lot of credit for their professionals and what they do it's a tough job it's a lot harder than one might think and I would encourage you to go on the Honolulu police department's website and look for the application to go to the Honolulu citizens police academy 13 weeks long major responsibility lots of time but you get to do a lot of cool and exciting things so again I want to thank our police department and all the first responders and fire department for keeping our community safe that being said I'm also annoyed today I'm annoyed because I can't stand it anymore I'm getting people continuing to call me talking about board meetings not being able to speak open board meetings secret meetings and everything else so I'm going to try one more time to try to help everybody understand what the law is and what the tensions are and I brought in my leading expert Nalan our attorney expert to talk to me about this welcome back to the show aloha everyone thank you for having me again you're tired of seeing me yet being on the show you do such a good job you know no always a pleasure to be back you know I must have to pay you to say that I mean either way and just tell everybody again briefly what you do besides being a mean attorney that beats up on everybody I'm a council with the law firm David Keeley on Cup Chuck Hastert we are a full-service law firm with deep roots on this island serving all Hawaiian you know residents myself I practice immigration law and condominium association law I you know actually actually I graduated from UH Law School and my first job you know out of law school is representing association since then I've been you know like trying to be the voice for our industry representing associations on all matters sort of serving as their general console providing legal opinions interpreting project documents handling collections for closures you know litigation dispute resolution yeah well you know I think it was last week maybe I do strike a time we've done over a hundred and fifteen shows believe it or not we had a member your firm tread Ireland here who talked about something I hadn't thought much about is when the insurance company turns down your claim kind of insurance coverage issues and he was quite fascinating and interesting you know but you have a really great firm broad-based and I appreciate you coming here and and trying to help me through this all right let's get into it yeah I told you I'm frustrated our boards required to have open board meetings and why yes all our condominium associations are subject to 514 be the statutory requirements if you have a file more units and one of the requirements is you you are supposed to have you know open board meetings and you know at least once a year we know the problem I see I hate to say that you know this 514 be also a most governing documents say you're governed by Robert rules of order or that's a part of your meeting conduct for lack of an order in Robert rules of order has a whole bunch of other stuff in there about the president's right to appoint committees and there's a term called the committee of the whole where a board as a whole meaning everybody can go meet as kind of a work session to kind of talk about things and I understand why that might be useful at times you know I get the sense that sometimes boards are are using that and say it's a committee the whole voting in the committee the whole and then just ratifying it at the next board meeting so there is no real discussion in public and there is no real vote in public other than quote the ratification of a prior vote how do you feel about that you cannot use the committee of a whole or these informal work sessions to try to replace a functional board meeting you know from the big picture you know there are different authorities garminy associations first you know that's the statue and then you have your governing documents decorations bylaws house rules and then you know there's Robert's rules of order when you know there's something that's not provided in your stat in the statue you cannot find anything you know in your project documents then you can try to look into Robert's room you know rules for guidance but if you know there is requirements there is provisions in your project doc or their statue provisions and they're conflicting with each other you should always you know the statue goes first you follow that and then you know you go back to your project documents you know the whole purpose of having board meetings is basically to have all members of the association you know have the right and access to learn you know how the project is wrong operated because you know this is everybody's project even you know being board directors you're just elected representatives to make it functional but you have the obligation to report back to your members and the board meeting via meeting minutes that provided a vehicle for everybody to be informed and also if you want to be more involved you have the right to do so as well so beside the statute let's just say is there a practical reason why you should have open board meetings as a board? Oh yeah definitely you know practically speaking I think you know the board meeting provides a good process for directors you know before you vote you discuss the rationale behind your vote and of course your former decision your voting results and everybody's vote will be recorded in the minutes you know for future if there's something getting into disputes you can always go back and you know of course you know you with D and O you you're familiar with board directors sometimes got sued you know there's also statute provisions talk about okay so if a matter is supposed to go to mediation you know the board deciding not to go to it and you know directors could be subject to personal liability but they're carved out a special exception there if somebody if some director voted differently and then you know that that's a safeguard for that safe harbor for that director so basically the minutes is a legal records of what happened what occurred you know it's really the legal records of how the associations decision were made and I hate to put it in these terms but I'll say it another way yes when you look at a board meeting you represent the owners who have elected you and those owners have standing because they bought in a condo they agreed to all the governing documents they paid a whole bunch of money and they have now become severally and permanently liable forever more to pay maintenance fees and they probably should have a say and at least the ability to see how the board conducts association business so it may influence how they might vote for someone in the future it allows them to understand more fully maybe the rationale of the board and why they're making that decision with the problems the association face because in some way they're indentured serve and say they don't have a choice once they bought there they got to pay and so since they got to pay they should have a right to know what's going on that's kind of how I look at it of course and you know it's not like this board can serve forever you also sort of use the board meeting to get more interested owners involved so that you can find candidates for your new board directors because without you know continuing people willing to serve on the board the association cannot function so basically it's also a good communication process you know under the statute owners have a right to you know attend board meetings except of executive session so yeah so be more transparent and that's the whole purpose of having meetings that's interesting I'm gonna be a speaker at a convention in San Francisco in on September 6th and I was asked to talk about our association industry and my title of my speech is a look into the future and around the corner and I kind of track and I hate to use the word study but I'm engaged and learning as much as I can about what's going on across the United States on managing associations and other states whatever it may be and the popular term today looking to the future it's called community engagement you know our whole way of community communicating with the community is changing particularly with Facebook and Twitter and Instagram and all these things I don't know how to use that our whole method but the whole concept behind it is to build a community through engagement and participation and I can't think of a better way than having open transparent board meetings that people can be engaged through that process to be a part of the board to the extent they're sharing input about the community to help the board make intelligent decisions so that's kind of how I feel about it but let's kind of get back to the basics of 514 b you know 514 a for those who don't know sunsets or dies or is repealed as of January 1 2019 which is a whole another story but pretty much a mature developer with unsold units or inherent in a unit or whatever it may be for the vast majority of 90% plus 514 a is gone as of of January 1 2019 that being said the 514 be part on condominium governance over 514 anyway so they're kind of stuck with it anyway so let's just go kind of review the open board meeting concept who can go to an open board meeting board directors members of the association or invited guest you know guest invited by the board so a tenant doesn't ever write to go to the board meeting unless you know they have an invitation that's right so if they're invited anybody can go yes but if they're not inviting they're not an owner or a member of the board but to be a member of the board you have to be an owner how about the association's lawyer or parliamentarian are they I guess they'd be invited guests they have they have no statutory right to go they have no statutory right or unless they own a unit there so right and so in theory if you went to a board meeting and the board president bought the lawyer or the parliamentarian with him and the board members said I objected that they held a vote the majority of the board can say they don't want the attorney or the parliamentarian as a guest but it sounds you know usually for I've seen like a pretty common for attorneys to go to these board meetings but for a parliamentary to go to board meetings that must be means there's something really contentious they're going on you know like for executive session of course you know that if they're so purpose is going to that you know maybe you know there's a way for them to only attending that session instead of you know sitting through the whole session if there is you know objection there but if if the board already made the invitation I don't think the owners have a right to exclude them and the owners wouldn't but yeah because we're going to go to a short break but it makes this one final comment before we move on to other subjects my final comment is I've gone to contentious board meetings with a board president surprised the board by bringing an attorney or parliamentarian wow and where the board members voted to not allow that person to be a guest okay and and they had to go so my point in summary is you're an owner and that includes the board member because you're a member or an owner you are entitled to go to any board meeting anybody else has got to be invited and be a guest and certainly proxies are not allowed of board meetings you have to be there in person so an owner does not have the ability to give a proxy to someone to attend a board meeting and on that day we'll come back with further discussion after our one-minute break and maybe I'll settle down from being angry from all these questions we're back I'm still angry maybe frustrated is the right word because I don't know how many times we've had to have shows about open board meetings and the right of owners to participate and I think it's true now that we the law was changed recently where when they published the board meeting notice they have to put the expected agenda and also they have to adopt meeting rules to allow owner participation is that right yes basically the new law expanded the owner's rights to participate in board meetings also specify that the meeting minutes has to include all the agenda items that are expected to be discussed at the meeting you know the board should also adopt owner participation rules so that you can still have the orderly meeting while you have more more members attending such meetings so on this notice it says this is the expected agenda for tonight does that prevent the board from having amending the agenda and doing something additionally for regular meetings you know things do change you know to be realistic of course you can't just strictly follow the agenda if there's something you know I expected that needs to be included in the discussion at the meeting it's okay to go ahead do that but you know there's another type of board meeting called special board meeting it's called for the specified purpose you need to strictly follow the agenda for those meetings you cannot you know deviated from that add on some other items so a special meeting is limited to the purpose of what you said you're going to do with the meeting a regular meeting even though you have the expected agenda on the notice the board could amend the agenda and add something that they learned since the posting is the posting is supposed to be 72 hours in advance of the meeting when practicable I think the statute says so I think the board could call an emergency meeting so long as they notified simultaneously all the owners as they notified all the board members so the 72 hours is more of the routine because you don't have those surprises too often you know so that's about meeting rules or participation for a second but I've always advised boards as follows certainly you don't want this to be a debate the shouting match and where it keeps you from doing your business the owner participation but what most boards do will say something as follows the next item on the agenda is discussing the paint color of the new building before we allow owner participation the board's going to discuss it first and maybe hear from a paint designer then we'll let the owners participate and ask questions or make comments so okay paint professional says the following Frank says this Susan says that I say this okay now we'd like to have the owners participation okay thank you for your vote you like a pink building I see your point you don't want to paint the building at all and now that we've heard from everybody we're going to take a vote boom and that owner who wants to fight with you you can say look I'm limiting you to three minutes to talking that subject but we're not here to have a debate we're here to receive your input but not get into an argument with you and frankly I hate to say from experience more times than not even though that participation rule may not be closely followed and people have an intelligent conversation owners participate when in fact you have a difficult situation by having owner participation rules and treating everybody equally under those rules you make the meeting just run more smoothly and you comply with the statute yeah and also make sure you remember to notify every owners in writing when you adopt to any new board owner owner participation rule because that's important you know if every time if you mend it you're supposed to give notice to owners again about what is the current rule is how about the famous you don't have a board meeting and I'm going to caught the email vote what do you think of email votes that should be avoided but sometimes you know it's sort of you know in order to you know to timely you know respond to emergency matters or important matters we've learned to short time fuse you sort of have to do it and then you know try to ratify at a later meeting but that could be dangerous as you mentioned before you know if you know a board member voted a certain way in email but later on change this mind then you know the part email vote is not going to be valid and what are you going to do with that especially if already you already signed a contract based on that so that's definitely not a good practice we wouldn't recommend board trying to conduct business in that way but if it's necessary then you know it can be used as a way to conduct you have to be cautious and how you use it because like I like you just said that email vote isn't binding until they go to the board meeting formally vote in a regular board meeting and person can change your mind then you're up a up the creek without a paddle if in fact people change your mind between the time of the email vote then you get in the argument that because I wasn't available and I didn't vote by email I would have affected the results of the vote to the extent that if they had heard my opinion they would have voted differently and now they're with the regular meeting and now they hear my opinion they're voting differently and now you've signed the contract you have a big problem that being said I've seen situations and being on the board of a condo I'll kind of generalize this where the board voted to approve a contract for $5,000 plus tax and after the boat was approved and the work was being scheduled the contractor came back and pointed out a hidden condition that wasn't included in the bid of $200 and so the real contract was to be $5,200 because of a hidden decision and they want to get this work done next week that the board can either a call a special meeting for the purpose of changing the amount or in this case the board says when was discussed by email let's just have a new motion at the next meeting and prove it for $5,200 not take the time because in a way it was de minimis it wasn't a big deal they needed to work needed to be done they had an open meeting they approve $5,000 plus tax and yes there was a hidden condition when they opened up the wall that wasn't anticipated that maybe they could have covered in the contract itself by saying hidden conditions are an additional fee and Frank the contract did say that but so it's a gray area but I can understand there could be some rare occasions where you may discuss something by email and some action you've taken knowing you're going to amend it a previous motion in a future meeting so I'm not going to say it's never done but would be very cautionary about it because a you're denying a person's right to be heard by having to debate at a meeting including the owners and B if you make a decision it turns out that the tide has changed they're not against it you indirectly as the board president who maybe was instigated this put the association in harm meaning you're personally in harm for violating the law and the documents yeah so hopefully I mean you know like I understand for like holding a special meeting the major concern may be trying to schedule it may be difficult but these days there's technology you know it's okay to call into a meeting you can also use new technologies like zoom you know you got a video conferencing everybody can see and hear each other at the same time so that makes finding scheduling meeting be more accessible easier for everybody to suit everybody's schedule instead of you have to physically be at the same place at the same time well because we're running out of time I want to discuss one more thing sure our minutes important oh yeah for sure why because it is the legal records of what occurred at the meeting it's supposedly to recording you know all the official voting results on the official motions you know basically that's the vehicle that you use to inform your members in writing all members in writing of what was conducted at the meeting and if you have five board members and three vote yes and two vote no you identify who voted yes and no in the minutes yes and why is that important you know like in the worst scenario if this matter gets into dispute it goes to court you have a clear record of who did what and then you know as goes back to my example of a mediation example you know you could get a safe harbor you know because you wouldn't know on that mediation matter you'll cover like so yeah a friend of mine told me they about a white civil rights commission complaint on a on an emotional support animal and essentially the board had approved emotional support animal but one board member during this process had written a handwritten note to the tenant and saying I don't like the fact you have a dog or something to that effect and so the tenant fought a civil rights commission complaint and what it got down to is he said she said and because they didn't put in the board minutes that the board approved the emotional support animal they ended up settling the case for some damages because they didn't have a clear record of their decisions yes and no yes so that's another reason why minutes are important right I want you to know I feel better now I was all angry and frustrated coming in looking at you and having you make me feel that I'm safe and we're all under control and I'm gonna thank you for being here and tell everybody here the great news the great news our show is about cannabis used to be called marijuana in my days but now the word is cannabis and so I'm bringing in one of the leading experts on cannabis and marijuana in condos who wrote an incredible article you all should read and her name is now on so you get to come back next week and talk about a different subject maybe we should have a discussion about whether the board when they vote if they're under the influences of cannabis whether that's a correct vote or not wow that's like it on that anyway thank you all for watching condo insider our show about association living I hope you enjoyed this show as an industry we appreciate bringing these topics before you so hopefully you'll learn something and we'll see you next Thursday at 3 o'clock with Nalan to talk about cannabis aloha