Some associations may have an urgent need to conduct particular business during the COVID-19 outbreak, perhaps even in response to the crisis. Unfortunately, in the upcoming days and weeks, the governing boards of community associations will likely find it to be more and more difficult to meet in person to conduct association business. The governing boards of many community associations—in particular those without provisions in their governing documents authorizing board members to participate in meetings remotely, and allowing for electronic signatures — may be at a complete loss as to how to proceed during these uncertain times. The goal may then become to accomplish necessary business without violating orders or posing an undue risk to the community.
Fortunately, there may be some specific guidance for both Massachusetts and New Hampshire associations. In Massachusetts, guidance may be gleaned from the Executive Order signed by Massachusetts Governor Charlie Baker on March 12, 2020 (hereafter referred to as the March Executive Order). Pursuant to the order, Governor Baker temporarily suspended certain requirements of the Massachusetts Open Meeting Law to reduce the risk of exposure to COVID-19 at public meetings, and to provide public bodies with an outline for conducting meetings remotely. The March Executive Order now suspends the requirement that municipal board meetings take place in public places that are open and physically accessible to the public — provided that the public still has access to the municipal board’s deliberations at no charge, through adequate alternative means; e.g., via telephone, internet, or satellite-enabled audio or video conferencing, or any other technology that enables the public to follow the meeting in real time. If such alternative means are not available due to economic hardship, a full and complete transcript, recording, or other comprehensive record of the proceedings should be posted to the municipal website soon after said meeting ends.
Further, municipal board members, applicants, participants, and members of the public may now participate in municipal board meetings via remote or virtual means, and municipal boards are expected to provide for an alternative means of access so that applicants, participants, and members of the public may reasonably participate in municipal board meetings remotely. Otherwise, municipal boards are encouraged to give due consideration to requests for postponement and continuances of public meetings where the use of such ‘alternative means of public access’ may not be practical or otherwise feasible. Although associations are not directly governed by the Open Meeting law, by analogy it is reasonable for an association to utilize the measures presented to ensure that essential business of the community is conducted.
In New Hampshire, the current version of the Condominium Act actually explicitly provides for voting without a meeting. RSA 356-B:39-a provides, in pertinent part, that a vote may be taken without a meeting, provided that:
• A ballot issues and identifies the actions subject to voting and provides an opportunity for owners to vote for or against each such action;
• The ballot indicates both the percentage of returned ballots necessary to establish a quorum and the percentage required to vote in favor of the proposed action(s) in order for the action(s) to pass;
• A date, time, and manner is provided for those owners wishing to share information with other owners regarding the subject of the vote(s); and
• A date and time are specified for the return of the ballot, which time is no fewer than 10 days from delivery.
As long as the requirements set forth in the statutory provision are met, New Hampshire associations may conduct a vote without a meeting, and thus accomplish urgent business safely.
Although community association board members should continue to act in accordance with their association’s governing documents when conducting association business, in cases of emergency where in-person meetings are prohibited or ill-advised because of concerns around COVID-19, boards may consider availing themselves of the options provided by the March Executive Order (i.e., utilizing telephone, internet, or satellite-enabled audio or video conferencing technology) or the provisions of RSA 356-B:39-a (i.e., conducting votes without a meeting). Thereafter, meeting minutes should be prepared to reflect the outcome of such activities, provided that the information therein was not privileged or otherwise protected from disclosure.
Moreover, acting now, or in the wake of this crisis, associations should give serious consideration to amending their governing documents to allow for board members and communities to act utilizing remote or other virtual means.
Jennifer L. Barnett and Gary M. Daddario are partners at the Massachusetts- and New Hampshire-based law firm Marcus, Errico, Emmer & Brooks PC. This advisory is offered as a service to clients and friends of MEEB and New England Condominium Magazine, and is intended as an informal summary of certain recent legislation, cases, rulings, and other developments. This advisory does not constitute legal advice or a legal opinion and is not an adequate substitute for the advice of counsel.