Meetings and Elections
March is commonly the month in which many community associations hold their annual meetings and elections. Some of my clients are planning special meetings in March and April in order to vote upon certain issues. The obvious question is whether an association should, or in some cases even can, hold the meeting. And what about those associations whose board elections are required to occur before March 31?
As of the date of this article, there is an Order in place from the Ohio Governor capping group gatherings in a single room or a single space at 50 people. This means that larger community associations in Ohio that would normally expect meeting turnout to surpass 50 attendees risk violating the Order if they hold a physical meeting. I will not delve into the complex legal structure of the powers of federal, state, and local governments to order closures, caps, and curfews; simply know that the federal government has some powers to respond to a pandemic in this way and that state governments have the right under their inherent and broad police power to respond as well. The need to contain a pandemic is so strong that bans on public gatherings will pass the legal test required in order to curb First Amendment activities. These issues have been legally tested before and case law comes down on the side of the government. Accordingly, I believe that the Governor’s Order is binding on association meetings.
Smaller associations that do not expect a turnout of more than 50 people can legally hold a meeting. However, just because they can hold a meeting does not mean they should hold one. Community spread of COVID-19 occurs quickly due to the easy ability to spread the virus without symptoms during the 14-day incubation period. This is why governments around the world are encouraging or even forcing people to have as little contact as possible with others.
Regardless of the size of your community, I strongly recommend that each association’s board make a business decision to postpone all owner meetings. At a minimum, associations should follow as closely as possible all official guidance on group gatherings and social distancing. Community associations are generally not legally responsible for the health of their residents. However, some declarations contain language that arguably puts an obligation to protect the “health, safety, and/or welfare” of the residents on the association. That statement is vague and I am sure no one wants to find out if it requires following official recommendations during a pandemic. Social distancing, wiping down surfaces, and constant sanitizing in any group setting is likely not practical. As of the date of this article, President Trump’s Administration and the CDC recommend capping group gatherings at 10 people. At the rapid pace at which this matter is evolving, Governor Dewine could follow suit, making any physical meeting of an association impossible. Even though a national lockdown has not been proposed, it could be possible, and in any case, local governments nationwide are instituting lockdowns. In light of the above information and the ever-changing standards and legal mandates, I advise associations to exercise wisdom and foresight and postpone all owner meetings.
Any association that follows the above advice should send a notice to owners informing them that “due to the pandemic of COVID-19, all owner meetings are postponed until further notice. On or before April ___, 2020, the Association will issue a new meeting notice or provide further details depending upon applicable legal mandates and recommendations of counsel.”
Some of you may be worried about the effect a postponement will have on first-quarter board elections mandated by your association’s governing documents. I reasonably believe that if an owner challenges the validity of a board that did not turn over before March 31 or tries to force an election during the pandemic, a court would side with the association. And that assumes that a court will be open. Many courts in Ohio and nationwide are closing down or restricting access except in cases of criminal and domestic violence emergencies. Notwithstanding, in order to reduce later challenges to board decisions made during this period, I encourage boards to make only those decisions that are necessary to the operation of the association and to avoid making any drastic or controversial decisions during this time. Also, the new board that is elected after the postponement period has ended may consider voting to ratify the prior board’s decisions during the postponement period, but only after seeking advice from its counsel.
Lastly, if the pandemic lasts longer than expected into the future, it might be possible for an association to hold a meeting at which the attendance and voting occurs by directed proxy, mail-in ballot, and/ or telephonic or video conference. However, a more in-depth look at a specific association’s governing documents would be needed before advising that any of these options actually exist.
Although most community associations’ boards are small enough to stay within the CDC’s recommended 10-person cap, I would still strongly recommend avoiding in-person board meetings when possible. Experts strongly urge everyone to stay home as much as possible so if there is a way to avoid in-person contact, boards should utilize it. If local governments initiate mandatory curfews, boards will have to avoid in-person meetings.
Ohio law allows boards to avoid a meeting altogether if they unanimously agree in writing upon the issue to be decided. Board members may vote by email because that qualifies as a “writing.” If unanimity is not possible, then the board should have a meeting via teleconference or video meeting. Ohio law permits board members to attend board meetings telephonically or via video conference as long as those board members are able to interact in real time. Therefore, if a board must meet, I urge them to utilize technology so that all board members and their managing agents may attend from their own home. If the board is able to avoid a meeting by having unanimous agreement in writing, I recommend noting that decision in the next meeting minutes of the board.
Boards have full authority over common elements and therefore they have full authority to close amenities during this pandemic. I strongly recommend that associations close all non-essential amenities and/or confined spaces immediately. With the closures of schools, workplaces, and businesses, bored residents itching to leave their homes may be drawn to their community’s amenities, thereby increasing the number of people present in the area. Even if constant sanitizing and enforcement of social distancing was possible, a community amenity in use is directly opposed to the measures that experts say are necessary to prevent the spread of COVID-19. If the association intends to follow the CDC’s 10-person cap, it goes without saying that most amenities should close. Outdoor spaces without high-touch surfaces, such as walking trails and green spaces, can be kept open, but social distancing should be enforced as much as possible. And as unpopular as this may be, playgrounds should be closed.
In regard to common laundry rooms and other necessary amenities that need to stay open, the association should frequently sanitize the area, limit the number of people in the area at one time, and enforce social distancing. If these measures are too burdensome on the association, then the board might consider restricting hours and setting appointed time slots for residents to use the area. In any case, there will be a burden to responsibly operate a necessary amenity at this time, but it is unavoidable.
High-Rise Condominiums and High-Risk Populations
If your association operates a condominium populated by a fair number of elderly folks and/or a high-rise condominium, the risk of spreading COVID-19 is higher. I strongly recommend that the board encourage residents to stay in their homes as much as possible. Even though associations cannot force residents to stay in their homes, the closure of amenities and banning of all group gatherings in the common elements will discourage people from leaving their units unnecessarily. Common hallways and entrances should be sanitized as often as possible. I recommend posting signs in these areas advising residents to refrain from touching surfaces unnecessarily and to use a glove, tissue, or napkin to touch a surface when possible.