 Welcome to another episode of condo insider. My name is Jane Suzuki more and I'm going to be your host today. And my guest is Larry McGuire, she's an attorney and a partner. And with the law firm of Porter McGuire Kierkonah LLP. Hi Larry. Hi Jane. Thanks for joining me. Yeah, my pleasure. And, you know, we're talking and, you know, it's been quite a year with the pandemic and it's created quite a lot of challenges, you know, for association. And, you know, the reason for, you know, the reason we came up with this topic is I got a call from the real estate commission. And they're the ones who get all the, you know, the complaints and concerns from, you know, the public and condo owners and, and I asked them all, you know, what are some of the concerns that have been raised and she says you know the number one concern that that people were calling about we're, we're meetings on number one board meetings and the lack thereof, probably because with the pandemic. I mean, we had to kind of figure out how to hold a meeting. Right. And it was, it was pretty stressful at first because, you know, most people weren't using zoom yet or, and many people never heard of a WebEx at that point in time so yeah it was very stressful initially. Right and one of the challenges was that you know that we had these government regulations that says I'll shout now gather. Yes. And so I mean that was that was one of the biggest challenges I mean because you can't have a board meeting with with owners, because then you're in violation of the gathering rules, you know that the government have issued. But you know I think somebody asked, and you can chime in here but you know with the government with the mayor someone. And he's kind of clarified that those rules will apply to association meetings right that's right because they're business meetings they're not social gatherings. We gather for purposes of conducting association business. So there's a difference. Okay so we're exempt from the gathering requirement but still, it's not. I mean, people didn't, you know feel right, you know, getting together in a room to have these meetings. You are a mask, and you're right in the social distance. Right. And you know, and I guess, you know somebody was, I mean we all kind of discovered that there's a provision in. I mean the statute the 54 chapter 514 be that would allow condominiums to hold board meetings remotely right. Yes, that would be 514 be 125 subsection C. And basically says that unless otherwise provided in the declaration or the bylaws, a board may permit any meeting to be conducted by any means of communication, through which all directors participating. They simultaneously here one another during the meeting. Right. And you know, being an old timer I mean that I can remember with that when the legislature put that provision in, you know, the chapter, and that was way back in when Nikki hit Kauai. Right, and there were, and people couldn't get to the island. And you know, they had to deal with damage to their condominiums and a lot of the board members didn't live on Kauai. So, so what so so that provision was put in there. And at the time, I mean, this was before the, you know, the video technology, and that reference to being able to hear each other simultaneously, refer to conference calls telephone conference call. Now what are they what are they using to do well now everybody's using zoom pretty for the most part zoom and WebEx. A go to meeting is another application so there are several available now for use and you know I've had minimal experience with WebEx but I can tell you that zoom is very user friendly, and I would say probably most of my board meetings have been through zoom. You know, so what do you say to an association because a lot of associations may have, you know, older people who aren't tech, you know, advanced or, you know, tech users. I mean how, how do they, you know, do this because I know when, when, you know, when when they came to our association. It was one of my board members who decided we would use zoom and, you know, got all of us on board that's how it happened. But what if you don't have somebody like that on your board. Well, oftentimes you would talk to your property manager because they're holding zoom meetings all the time and participating in them. So, you know, in the same way that a property manager would gather people together. In a conference call meeting with their board, they could also gather people and, and, you know, at a particular place that's appropriate and instruct everyone in terms of how to use it. And I know we've sent out instructions to certain members of the board, telling them how to upload zoom the application and then how to sign on and basically, you know, once the property manager sends you the link, quote unquote, you click on that link and then you follow the prompts that, that allow you to basically have your video and your audio. So it's not, it's not difficult and believe me, I mean I'm no tech wizard myself so if I can do it anybody can do it. Right so I think you know in the beginning it was very challenging, but I'm kind of used to it now I think we're into our seventh or eighth month of zoom board meeting so you know I've kind of gotten used to it. And what happens in our board meetings is, I appoint another board member to basically be the host, because I can't, you know, I've got an agenda that I've got to run. So I, and so my host, my board member who becomes the host decides who gets to come in, and make sure that they're, you know, they're okay, and make sure you know that certain people, you know, don't speak. Right. They have that mute function. Right. So I found out that the host can also control what they put on the chat. Right, I didn't realize that but one of my board members complain that it was this, it was. The people, you know, leaving emails on in the chat room was interfering with the board meetings and I didn't, I wasn't paying, I mean I could see it but I wasn't paying any attention, but because I was more concentrated on my agenda. But yeah, there are things like that that, you know, that I didn't realize and then anyway, on my, my board member who was the host, you know, could control the chat so that everybody else could see it. Right. You know, so, so those technological things. I think you know, you know, it's good that you have one person basically handling that part of it where the other people just, you know, participate in the meeting. And there's ways you can raise your hand right. Right. You can raise your hand and, and without, you know, having to raise your hand and wait for somebody to actually see with your hand up. Right. And so, you know, I think everybody's kind of getting used to the, you know, these teleconferencing platforms, I guess they call them right in many ways they're much easier than having to travel somewhere to go to a meeting with a whole group of people and definitely it's safe. You know, you don't have to worry about, you know, catching anyone else's germs or anything like that. And it's very accommodating. And one other thing, can owners participate in these zoom meetings or teleconferencing. Yes, definitely. I mean, that's the whole thing with a zoom meeting. I know it's my understanding with zoom anyway, you can purchase different options so for example, you can purchase an option on zoom that allows 100 participants. And then there are other options that allow for, I think up to 300 participants so there are different plans. And so it accommodates however many people you want to have on the zoom call, you would only need one host to host the meeting and typically in my experience that's the property manager will host the meeting and then all of the owners come on as, as a guest to the zoom meeting. You know, there's, you know, in order to get on any of these platforms, whether it's zoom or go to meeting or WebEx. I mean there's like a ID number you have to have and a password sometimes right. Yeah, so it's not something that you want to post on an internet because then you might get people who aren't even owners or residents, you know, you know, part end up participating in these meetings. So how do you get, how do you get the, how do you get the information out to the owners, so that they can participate, you know, and, you know, without, you know, breaching any type of confidentiality, you don't want to post this, you know, all of this information on the internet so how would you, how would you suggest that boards do this. I would say basically however you're going to post a notice to your board members typically other than posting a notice, you know, in the common area because you don't want like tenants to appear at the board meeting. So if you have their email address, and you would email it to them, otherwise you would send it by mail. You know which units have owners in it you could post it on on their door in a closed envelope. So there are many ways to communicate this but I wouldn't advise just hosting it. You know, in the same area where you normally post your notices because, like you said, you don't want tenants to attend that being said, there is a way to basically minimize who can and cannot attend the meetings. But like you said by password, etc. So the host is able to regulate who is allowed in the meeting and who's not allowed in the meeting. Okay, and you know, once you've got, you know, not now you've got everybody you know on this teleconferencing platform and you've got the board members who can all hear each other simultaneously. And you've got owners who are, you know, and they can if they don't have a computer they can participate by telephone. Right. Smartphone. Yes, they can. So that means that, go ahead. They have a number that they phone in, and they can participate and they can speak and hear what's going on in the meeting. Well, for example, if you have an iPhone, you put you upload the application the zoom app onto your phone. And then if if you have been emailed, what's considered the link to click on zoom, what will happen is when you click on that link it will open your zoom app automatically. And then you can participate from there using your iPhone or your smartphone whatever type it may be. I see. And so so that means that you would be part of this meeting but you just wouldn't be on the screen I mean what shows up is maybe a little box with your initials. Yes. Well, you know if you're on your iPhone, yes, you can only see one person at a time. But if you're on like your iPad or your computer you're going to be able to see more than one person. So it all depends on how big your screen is and how many, how many attendees you have. Okay. And, and you know, once now that we've got everybody you know participating in these meetings. You know one of the other concerns that the real estate commission brought up is that there are still boards who don't allow the owners to participate during the meeting. They're not only allowed to participate if at all, maybe during an owner's forum, or they're told, oh no the board has taken a vote and we decided you can't, you know we're not going to let owners participate. Is that can they do that. Here's the distinction condominiums cannot do that in 2017 by 14 be 125 subsection a was amended to mandate that all owners can now participate in any discussion or deliberation of board members. So, and it says shall, they shall be allowed to participate. So it's not just the owners forum, they're allowed to participate during the meeting, pursuant to owners participation rules. For example with us we have provided drafted owner participation rules for a number of our projects are associations, as well as resolution. So the board can pass the resolution, then they adopt these participation rules. And once they're adopted you have to provide a copy of those rules to everyone to all the owners, and they have to be available whenever you have any meeting, and they can participate. In regard to home owners associations boards can decide who can and cannot actually participate in the meeting, and the statute is 421 J dash five subsection a, and it basically says that a majority of a quorum of the board can decide whether or not owners may participate during the meeting. So, HOA boards do have the ability to relegate owners to an owner's forum in terms of participation. But and that's on a per meeting basis because it's talks about a majority of the quorum of the board members so you know every board member or excuse me every board meeting they would decide on that topic within HOA. But with regard to condominiums. Absolutely, they have to be allowed to participate. It's mandatory. And you had you were talking about owners participation rules. What kind of rules are these. For example, one of the rules, typically is that owners are allowed to speak for two minutes at a time on any issue. So let's say there are five owners present at a board meeting. Each owner present may talk for two minutes on each issue being discussed by the board. And so it rotates and then they're allowed to talk for another two minutes, if they choose to do so. And then after they've all spoken during that period of time, the board makes their decision on that particular issue. And that applies with each issue being discussed by the board. And you know there are other rules that basically mandate conduct you can't be swearing at a meeting. You know if you're if you swear then you basically they take away your ability to speak. You know if you're swearing and you're being hostile to other board members things like that. Okay, and, and the reason for these rules is to basically allow the owners to speak, but not yet, you know interfere with the chairs running of the board meeting because the chair has got an agenda. Right. And so, in order to, but, you know, what the chair does, what this rule change does is it requires the board to balance the right of owners to participate, and for the chair to complete his agenda. And I think, I think the rules also provide for the chair to kind of be in charge it's up to his discretion depends on his agenda. He's got a long agenda, he can cut people, tell people in the beginning, I've got a long agenda. So, you know, we're going to have to limit people speaking. And, you know, so, so if you have to speak, make sure you know you say what you want to say, and, and keep it short, because we have an agenda that we need to finish. Well, and that's what the rules are for, right, everybody knows in advance what's expected of them at that particular meeting, including the members of the board. So they know that owners that are there are going to be able to speak. But what you don't want is, is owners to repeat themselves or board members for that matter to repeat themselves. Right. Or for the owners to hijack a meeting. Right. Right when you got the board press and the chair is basically in charge of a board meeting and, and the chair's primary duty is to get through this agenda. Right. Yeah. And in the interim to accommodate owners who have come to the meeting, and to allow them to participate in a meaningful way without interfering with them completing the agenda. Exactly. And that way decisions that you know the owners have input in board decisions before the decisions are actually made as opposed to after the fact. Uh huh. And you know there's another issue that you know keeps coming up. There are boards and I guess the pandemic made it even even more in use is a lot of boards are taking to making board decisions via email. Are they permitted under the statute or you know the governing documents of economy. No, absolutely not. Again, when 514 be 125 a was amended in 2017 it now mandates owners have the ability to participate in all discussions or deliberations. Right. I mean you're you're basically conversing back and forth with people via via an email communication. Right. You cannot do that anymore boards can no longer vote via email and then ratify it at a subsequent board meeting and that's because owners now have an absolute right to participate. I would say the only exception to that is when the board is trying to make like ministerial decisions such as, you know, when are we going to meet next, what's the date and time of the next meeting, things like that that aren't issues where you're talking about the merits or, or making decisions that will affect all of the owners on a material basis. And so, so, so it's basically the condominiums who can't do that it doesn't affect the HOAs under 421 J. Right, correct. They can still do email decisions. Yes, but it's not, it's not recommended. Okay, and why would you say it's not recommended. Well, let me turn to the statute and forgive me. But it says basically that all meetings of the board of directors other than executive session shall be open to all members to provide input no matter being discussed. So, if you're just what while an email discussion is technically not a meeting. It really could be viewed as a meeting if all the board members are on an email chain and you're all discussing particular topic. It could be viewed as a meeting. If you're making a decision at that time. So I think, you know, if nothing else you're in violation spirit of the rule. And it, you know, and right now, we hear from legislators right, and they're talking about complaints are receiving from owners about a lack of transparency in making decisions. And, you know, the legislature wants us to govern ourselves. Right. They don't want to have to govern us by setting all these rules and laws when we could be doing it ourselves with common sense. Once we know what the concerns are, and we know we've been put on notice that transparency is a big concern. They don't want boards, you know, owners don't want to find out what's going on after the fact after the after a board has made a decision. They want to participate in that decision. Right. And, and, you know, I guess with, you know, with the computer and with emails. I mean, the owners are, you know, we're just travels very fast. So, you know, information, you know, circulates very quickly. You know, and so they want to know how, how come we didn't know. I mean, that's what you hear a lot. When, when, when owners complain, it's always based on how come you didn't tell us, right. I mean, that seems to be the basis of a lot of the complaint. Why didn't you tell us. I mean, notice of a board meeting right it's typically 72 hours or simultaneous with notice to members of the board. So there's no reason why if if the board needs to communicate something immediately, then they should be able to get the notice out to everybody and, and then have a meeting later that day that same day, and that would be legal. Okay, we're going to get to another topic that's related. We've been talking about board meetings. What about annual meeting can annual meetings be held remotely. Well, typically that depends on your governing documents. You know, if you're governing documents allow remote meetings, then you can do so but in my experience, most governing documents don't have a provision that allows for remote meetings. So, I know right now, we're in the process of drafting numerous amendments for numerous projects to allow virtual annual meetings to basically address the situation that we have right now. Because of the pandemic. Yes, absolutely, absolutely. And you're aware and you're you're part of the movement to to have the legislature. Yeah, draft a bill. Yes, yes, actually there are several bills right now that are before the legislature. That will be introduced rather about the ability to hold virtual meetings in an emergency situation, such as we now have with COVID. Okay, and these the legislation that's being proposed and you and I were talking about before the show. It involves condos and co ops and community associations. Correct. And because none of the legislative provisions provide for remote meetings. That's right. That's right. So the only way you can do it is if you amend your governing documents to allow it. Right. And so if you don't amend and and practically speaking the legislature starts next week on the 20th. Right. That's the opening day. And I think the deadline for bills is the end of January. And I and you and I were talking about, you know, the these drafts that are floating around. And so we expect the bill to be introduced sometime next week. Yeah, that would allow for these annual meetings to be held remotely. I know representative Aaron Johansson is going to be sponsoring one of the bills and I know Senator Baker has agreed to sponsor it in the Senate. So, you know, we're going to have it sooner rather than later, fortunately. And so if we can fast track it and use the legislature is going to be over by May. But you know, and so for associate and you know, we all know we both know many associations have not been able to have their annual meetings. Right. Since the pandemic started. Right. And I know some boards that are just adamant they are not going to hold it anytime soon. They want to wait till the vaccine gets out because they don't want people together and they're concerned about their members who are high risk. So I understand that. And so you know if we get this legislation the legislation is going to be introduced sometime next week. So, so by January, you know there's going to be a bill that's going to be floating around somewhere. Yeah. And, and the bills will cross. So we have one, and the bill that amends the role on meetings we're going to have one come out on the House side and the Senate side and the way the legislature works. There's going to be hearings on both sides and then it will cross over the crossover is is in early March. Right. And if we can get everybody to agree on language in the House and the Senate version. The bill can go up to the governor, probably by mid to late March. And, and I don't see any reason why the governor would hold off signing it. So yeah, practically speaking, if we can fast track it we could have a bill by the end of March or early April. We would solve a lot of problems because then you wouldn't have to send out a written consent, try to get everybody's approval in order to measure governing documents we would have a law that we could rely on. And one of the things that you and I discussed to that I hadn't thought about, because I thought the only issue, you know, with these annual meetings was to change the law to allow the meetings to be held remotely. Somebody brought up the issue of well you're at your annual meetings you usually have an election, and it's a secret ballot election. So how do you hold a secret ballot election, when you're having a remote meeting. Well I know the only thing that we could think of at this point was to do directed proxies, you know where the where you lay everything out on the proxy in terms of all of the nominees and all of the issues that are going to be voted on at the meeting. So that's a directed proxy, and then they literally state exactly how they intend to vote on the proxy itself, and then those proxies are provided typically to the members of the board. And then the board must vote exactly according to the designation on the proxy. So that's one way of doing it at least in the short run until we can get something out there. And then we I heard from another condominium attorney that there are these digital programs out there that you know can be used to have these secret elections. You know I don't know the details but I know that's why my 14b 121 was amended recently to allow electronic voting. And you know they're all there are certain precautionary measures that you've got to go through in order to use it. But that was passed with these voting machines in mind. You know, okay. At least that's my understanding, yes. So, but I personally haven't been to a meeting yet that's actually use those. I believe Steve Glanstein probably has I mean that was, he's the one that basically, you know he was behind that bill in order to get it passed so he doesn't know more about it than I do but apparently they're already used on the mainland, and, and they, they work well so I think it's just a matter of time before we have that here. Okay so that's something that we need to keep in mind when we start drafting the exact language on these bills that are, you know, going to come out next week. Correct. Right. Yeah, so I guess for those people who are listening, there is hope. Yeah, they're right. So we're working on getting legislation your legislators are working very hard to make sure that these bills get drafted, and hopefully we will have something that will, you know, be able to be debated and and passed in a couple of weeks. And you know we run out of time. So, what I'd like to do is to thank you, Larry for being with us. We're always full of information, and thank you so much for being available on this topic. And, and I ask all you listeners out there you're the viewers to join us next week Thursday for another episode of condo insider, the show relating to condo living and for people who work in condos. Thank you very much. All right.