The evening of April 23, 2020, Governor Kemp issued an Executive Order authorizing nonprofit corporations, including condominium and homeowners’ associations, to hold remote membership meetings, such as telephone conference or virtual meeting platform.
Prior to the April 23, 2020 Order, while Georgia law permitted community association Board of Directors’ meetings to be held via remote communication in which all Directors present could hear and speak to one another, Georgia law did not permit membership meetings held via remote communication. The April 23, 2020 Order extends a prior March 20, 2020 Governor’s Executive Order providing such remote membership meeting rights to for-profit corporations to non-profit corporations. The text of the April 23, 2020 Order can be found here and the March 20, 2020 Order here. After reviewing the orders, contact a professional community association attorney to clarify any questions.
Community Association Attorney Breaks Down Legal Requirements for Remote HOA Membership Meetings During Public Health State of Emergency
The Governor’s April 23, 2020 Order provides a potentially helpful avenue for community associations who must hold an HOA membership meeting during the pandemic to do so safely via virtual meeting technology or telephone conference. However, the Order contains specific restrictions that any meeting held via remote communication must meet in order to be valid. First, the April 23, 2020 Order only applies to membership meetings for which the notice of meeting is provided during the Public Health State of Emergency, which currently extends until June 12, 2020.
Second, the March 20, 2020 Order, which the April 23, 2020 Order extended to nonprofit corporations, requires that the Board of Directors establish procedures to enable verified members and proxyholders with reasonable opportunity to participate, be deemed present in person, and be permitted to vote on matters submitted at the meeting. That means that the Board of Directors must carefully select a platform for the meeting that allows all eligible members an opportunity to attend and participate in the meeting, possibly checking with their community association attorney to learn of commonly used yet secure platforms. This will likely require a meeting platform that can be accessed without cost by all members, as well as potentially providing internet/computer access necessary to join the meeting to those members who do not have it, by for example, setting up socially distant computer stations in a community clubhouse.
Additionally, to hold a valid meeting, the Board must put measures in place for verifying the number of eligible members present for quorum purposes, including those present by proxy, handling member questions and participation during the meeting, and, if a vote will be held at the meeting, for ensuring that only eligible votes are counted and providing a process for verifying the vote tally if challenged. We recommend that you work with your community association attorney early in the process to determine if the choice of the electronic platform will allow submitting proxies and/or voting during the meeting. If not, those documents will need to be presented before the meeting.
Practical Considerations for Virtual Board Meetings & Remote Membership Meetings
In addition to the legal requirements, there are numerous practical considerations for a Board to decide if holding a membership meeting by remote communication. For example, the Board will need a meeting chairperson/moderator fluent in the remote meeting technology being used who can effectively keep the meeting moving while addressing membership participation. As some members may have trouble with the meeting technology, the Board may also consider designating a technology point person familiar with the meeting platform who can answer technical member questions about use of the platform and help ensure all members get logged on and have an opportunity to participate.
All in all, while the ability to hold membership meetings by remote communication is an important new tool in a community association’s pandemic toolbox, using it properly requires careful advance planning with your association’s attorney to ensure that the meeting meets all requirements of state law and your association’s Bylaws. If the remote membership meeting fails to meet any of these requirements, the meeting could be deemed invalid and any membership action taken thereat ineffective. In many cases, it will be possible, and much simpler, to postpone the membership meeting until it is safe to meet in person, and/or, if a membership vote is necessary, to hold the vote via mail-in ballot without a meeting. Please see our blog entry on Association Meetings During COVID-19 Pandemic for more detail on these options.
Need More Information for How to Conduct Your HOA Business? Consult a Community Association Attorney
NowackHoward community association attorneys are here to guide you in finding the solution that is best for your association. Contact us at (770) 863-8900 or NowackHoward.com to see how our homeowner association attorneys can help your community.
