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The

Accell Advisor

What Do Directors Need to Know?By Matthew A. Gardner, Esq., Richardson Harman Ober PC

Lets imagine that you are one of those dedicated individuals that care about

your community and want to help it improve (the chances are very good if

you are taking the time to read this). You realize that the best way to serve

is to volunteer your time and effort to meet the needs of your homeownersassociation. You see the request from your association for nominations

suffer through a contentious campaign, and prevail to become an elected

director on your associations board. After a brief celebration with our

friends and neighbors, you realize something.

Now what?

It is not enough to have the drive and desire to be a director on your Board.

You need the skills and the knowledge to make the right decisions and avoid

the wrong ones. So where do you start?

The first step should be looking at the associations governing documents

(Articles, CC&Rs, Bylaws and Rules). These documents are the essential

elements of successful management.

The CC&Rs will lay out the major maintenance respon sibilities and duties

of the association: assessments, collections, common area, etc. The Bylaws

will give the board a roadmap on how to administer and govern consistent

with its corporate duties: meetings, notice, minutes, elections, etc. The

Rules will specify how the board can approach day-to-day living and

enforcement of association authority: common area use, discipline, etc.

(Continued on page 3)

W I N T E R 2 0 1 3

The Anatomy ofStairs

In most cases, it takes 10-20 years for

the failure of a stair to be complete or

obvious. With few exceptions, wehave found the cause of failure to be

consistent from stair to stair and

community to community. In all cases

the failure is due to exposure to rain

and sun and accelerated by poor

maintenance or poor design. Failure

can result in loose stair treads, which

can lead to falls or water intrusion

and dry rotted wood.

Replacing or repairing stairs is not

always as simple as just rebuilding

what you are replacing. Depending

on the extent of the repair, you may

be required to bring the stair into

compliance with current code.

Current code does not allow stairs to

be as steep or narrow as they once

were. Do not be surprised if the new

stair will not fit in the same footprint

of the old stair.

By Smith Architects

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THE ACCELL ADVISOR WINTER 2013

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The Anatomy of Stairs(Continued from page 1)

There are only a few material choices when building or replacing

an exterior stair. The Architect can select wood, pre-fabricated

concrete or steel. The materials can either be exposed to theweather or coated with a waterproof coating or deck topping.

Here are some common definitions when dealing with stairs:

Stair Treads

The horizontal surface of the stairs that you step on. These can be

made of pre-cast concrete (made at a factory), steel, wood or

some type of solid (hopefully waterproof) deck coating. The

treads are required to be uniform in depth and have a minimum

depth of 11 inches to meet current code.

Stair RisersThe vertical space or surface at the back of each tread, which

separates one tread from the next tread. Sometimes the riser is

open meaning an object can pass through it. Sometimes the riser

is closed. Closed risers comply with current building codes; open

risers do not comply. The risers are to be consistent in height and

have a current code limit of no less than 4 inches high and no

greater than 7 inches high.

Stair NosingWhere the riser intersects with the tread.

HandrailThe wood or steel tube or rod that ascends with the stairs.

Handrails are required by code on both sides of an exterior stair.

There are very few exceptions to this code requirement. They are

required to be of a specific diameter, shape and distance from the

wall or guardrail. They are required to extend past the top and

bottom of the stair and to terminate in such a manner that a shirt

or sleeve or bracelet will not get caught on the handrail.

(Continued on page 4)

Stair Stringer

This is the structural beam (wood or steel) that runs parallel to

the treads as they ascend. There are times when there is no

visible stringer because it is either embedded in a wall or hidden

with finish materials.

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What Do Directors Need to Know?(Continued from page 1)

to vendors suited directly to your communities needs, it

also provides regular valuable tools and education.

Everything from monthly luncheons dedicated to

relevant topics facing associations, to links to most

recent legislation, to mediation services, to workshops

for new Boards to cover all of the above. A quick search

can provide the answers to many of the questions facing

new directors. Visit the website to find the latest at

www.caionline.org.

While the directors make the final decision, an informed

decision should be based on acquiring the basic

knowledge from qualified professionals: managers,

attorneys, vendors, etc. Taking the time to learn more

from the dedicated professionals serving your

community could you time and headaches.

Finally, new directors should keep in mind the most

important aspect of their job; their neighbors.

The most valuable assets of an Association are its

homeowners. Directors who can utilize their

homeowners while conducting business will find their

duties easier to fulfill. Remember that the primary duty

that directors must fulfill is taking action in the best

interest of the association and its homeowners. The

most that a new director can hope for is an informed andinterested community. When directors engage their

equally volunteer homeowners, they will find extremely

valuable resources. Directors that ignore their

homeowners will find themselves the object of suspicion

and mistrust. Dont forget that the law requires

associations to receive and consider input from the

homeowners; requires financial and informative

disclosures; and requires regular open board meetings to

conduct business. Boards that do not meet these basic

obligations will not only be in conflict with the law, but

Every association will have different needs and duties

that should be laid out in your documents, so it is not

enough to know generally what information is located

where. A director must be familiar with these

documents before he or she can effectively carry out

those duties.

The second major source of information will be

California state law. For homeowners and association,

that means the Civil Code beginning with Section 1350,

otherwise known as the Davis-Stirling Act. This body of

law will enhance, and in some cases substitute, the

directors duties and authority under the governing

documents.

As an example, changes that affect every board and

association would be in Senate Bill 563. One provision

prohibits boards from making decisions by email, unless

in cases of emergencies. Another requires additional

notice for executive sessions. If you are not up on these

changes, the boards authority to act or enforce could be

called into question. The law is updated regularly, so a

good director will find a way to stay on top of the

changes. Sometimes that means making changes to their

governing documents that no longer reflect the law.

Sometimes it means finding someone who can help you

navigate the changes.

In essence, associations are their own communities with

varied needs. To be a successful director, you need to be

able to handle a wide variety of issues with competence.

As volunteers, that means relying on professionals for

input and guidance.

Being a member of a group like Community Associations

Institute (CAI) can be a valuable resource for

information. Not only does membership give you access
http://www.caionline.org/http://www.caionline.org/

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The Anatomy of Stairs(Continued from page 2)

Guardrail

The guardrail is designed to prevent falls from stairs of decksgreater than 30 inches above the ground. Current code requires

the guardrail to be no less than 42 inches high (it was 36 inches

before) and designed to prevent a 4-inch diameter sphere from

through it (it was 6 inches before). The current code also

requires the guardrail to be strong enough to resist a 200-pound

load along the top of the rail. We are not sure if this is based on

science or the average weight of a college kid at a kegger party.

Quick Tips for Managing Stairs Stairs with waterproof coating should be inspected annually

to confirm the coating has not been compromised by

furniture moving or misuse. Pre-case concrete should be

checked with every painting (3 to 5 years depending on your

climate) to confirm the treads are tight and the stringers are

structurally sound.

Be diligent in maintaining the paint where the pre-cast

concrete treads touch the stringer and where there are

exposed fasteners (bolts, screws, etc.).

Replacement or repair of treads typically does not require a

building permit. With few exceptions we have found that

repair or replacement of stair stringers requires building

permits.

Prior permit experience with stair replacement or repairs in

one city does not mean that another city will permit the

stairs the same way. Although the building code is a

statewide code, the Building Official is each city is the final

interpreter of the code. What worked in Irvine may not

work in Huntington Beach.

Some stairs are so complicated and integral to the building

structure that they cannot easily be replaced or repaired.

Plan on using temporary stairs when it is a big job that will

last more than a few days and when there is room to

accommodate the temporary stairs. If there is insufficient

room, you may need to look at billeting residents in local

hotels.

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Email Dos and Donts for Community Associations(by Mary M. Howell, Esq., Epsten Grinnell & Howell APC

others how they would vote on this issue, the email to themanager

would violate the Davis-Stirling Act. But, if its simply, put this item

on the agenda or heres how I want you to handle that situation

the email does NOT violate the Act.

Question: Can a director email one or two, but less than all, the

directors about anything that remotely concerns the association?

Answer: It depends on what constitutes a majority of the Board. I

the Board only has three members, such an email would violate the

Act. If there are five directors, emailing one other director would be

appropriate, but emailing two others would constitute a

congregation of the majority of the Board. If there are seven

directors, then one director could safely email two others. Note

however, that if such emails are part of a serial attempt to obtain the

concurrence of all other board members (discussed below), thenumbers dont matter: such a communication is not allowed.

Question: Can one director individually email each of the othe

directors what they think about an issue the director proposes to

bring up?

Answer: As the above, would be permissible UNLESS the email

were part of a serial attempt to obtain a concurrence of the Board

on an issue of association business. Part of the problem is drawing

bright lines of distinction is that the permissibility of such

communications depends on the subjective intent of the parties to

the communication. A director might not start out with that goal in

mind, but over time as responses come in, that director might sift tothe polling mentality condemned in the Stockton Newspaperscase

discussed above. To avoid this, refrain at all time from forwarding

threads about a subject, which contain other directors

observations and thoughts.

Question: Can one director individually email each of the other

directors to discuss what a committee (say, the budget committee)

has said during its deliberations?

Answer: Yes, provided the communication is not a direct or indirec

action leading to a concurrence of the other directors as to the

subject matter of the communication.

Question: Can a director instruct a manager by email to contac

each of the other directors to get their input on a certain issue?

Answer: No. As noted previously, the use of an agent or

intermediary to take a poll or obtain a consensus on anything

pertaining to the association circumvents the Act.

Question: Thats dumb! By this logic, the Board cant even take a

poll on whats a good meeting date, or where to hold the annual

meeting. Can this really be the law?

Answer: Dumb doesnt even begin to cover it. Bottom line is tha

whats is the use of emails, between a majority of the

With the advent of the 2012 amendments to the Davis-Stirling

Common Interest Development Open Meeting Act (the Act) which

restricted the use of emails by board members, unanswered

questions have been flying. The statute does not address many of

these, but the Brown Act (which regulates the meetings of public

agencies, and upon which the Act is modeled) has the virtue of

quite a bit of case and law commentary. It appears to answer many

of the questions regarding Davis-Stirling, so even though the

Brown Act does not, itself, apply to community association board

meetings, the following discussion, based on the Brown Act, will be

helpful.

Question: Can a director email the rest of the Board purely to

discuss a possible action the Board might take in the future? Its

not on the agenda yet, and all that would happen is a discussion ofthe issue, not any action.

Answer: Probably not. A lot depends on the extent to which the

current prohibitions on email meetings are intended to mirror

whats already in the Brown Act. The Davis-Stirling Act now

defines a meeting as a congregation of the majority of the

directors to hear, discuss or deliberate on some action that is

within the boards purview. The language in the Brown Act

defining meeting (Govt. Code 54952.2) is very similar.

By analogy to the Brown Act, such communication would be

prohibited, even if there isnt a vote on the issue. As one court put

it (in connection with the Brown Act), It is clearly the public policy

of this state that the proceedings of public agencies, and the

conduct of the publics business, shall take place at an open

meeting, and that the deliberative process by which decisions

related to the publics business are made shall be conducted in full

view of the public[T]he legislature has considerably broadened

the [Brown Act] by passing amendments intended to bring the

informal deliberative and fact-finding meetings within [the Brown

Acts] scope Wolfe v. City of Fremont (2006) 144 CA4th 533,

541-542.

Question: Can a director email the community association manager

with directions? What if that email goes to all the other directors

too?

Answer: Generally, a director can email the manager with either

directions or questions. And that email can be copied to the other

directors. What is prohibited is using the manager as an

intermediary, to obtain the concurrence of the other directors on a

possible issue of association business, outside of a meeting. Thus,

in Stockton Newspapers v. Redevelopment Agency (1985) 171

CA3d 95 (another Brown Act case), the court condemned the use of

an intermediary (in this case, the attorney for the agency) to take a

pollfor the purpose of obtaining a collective commitment or

promise from the members on an issue to go before the board.

Accordingly, if the direction given by the initial email is go ask the

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(Continued from page 5)

directors (serially or all at once) to develop a collective

concurrence as to action to be taken on an item, which

includes any exchange of facts, or substantive discussions

which advance or clarify a members understanding of an

issue, or facilitate an agreement or compromise amongst

members, or advance the ultimate resolution of an issue.

Ca. Department of Justice, The Brown Act, Open Meetings for

Local Legislative Bodies (2003), page 12. On the good side,

the same document states that the Attorney General does

not think the prohibition against serial meetings would

prevent an executive officer from planning upcoming

meetings by discussing times, dates, and placement of

matters on the agenda. It also appears that an executive

officer may receive spontaneous input from any of the board

members with respect to these other matters so long as a

quorum is not involved. Ibid.

Question: So exactly what can a director legally do in terms

of emails to other directors?

Answer: So far, as is clear today, and by analogy to the

Brown Act:

1. The directors can meet/communicate via email when

there is an emergency, and the individual directors have

consented, in writing (including email), to such an email

meeting. The consents must be filed with the minutes.

Civ. Code Section 1363.05(j)(2)(B).

2. An individual director may communicate (back and

forth) with another director or directors, even about

association business, PROVIDED the total number of

directors involved does not exceed a majority of the

board, and FURTHER PROVIDED that the

communication isnt part of a serial attempt to obtain

board concurrence on an issue, outside of a meeting. 84

Ops. Cal. Atty. Gen. 39 (2001)

A serial meeting is a series of communications, each of

which involves less than a quorum of the legislative

body, but which taken as a whole involves a majority of

the boards members. As one commentator put it,

[o]nce serial communications are found to exist, it must

be determined whether the communications were used

to develop a concurrence as to action to be taken. If the

serial communications were not used to develop a

concurrence as to action to be taken, the serial

communications do not constitute a meeting and the Act

is not applicable Note, however, the Attorney General

goes on to say, conversations which advance or clarify a

members understanding of an issue, or facilitate an

agreement or compromise among members, or advance

the ultimate resolution of an issue, are all examples of

communications which contribute to the development of

a concurrence as to action to be taken by the legislative

body. Accordingly, with response to items that have

been placed on anagenda or that are likely to be placedupon an agenda, membersshould avoid serial

communications of a substantive nature concerning

such items.

Note that the Wolfe case further provides that the Act

can be violated by improper communications which lead

to a consensus, whether intentional or not. When in

doubt, dont.

3. A director can communicate with the manager to give

instructions, and can receive from the manager

information pertaining to association business. Such

information might include committee reports, legal

opinions, copies of correspondence, proposed

minuteseven a meeting between the manager and

director wherein the manager lobbies the individual

directorbut generally such one-to-one

communications are permissible unless and until they

turn into an attempt to find out what other directors

think on the issue in question. Wolfe v. City of Fremont,

supra, at 546-547.

4. A director can receive, and respond to, emails from non-

director homeowners (though the wise director will not

respond unilaterally, but after permissible consultations

with fellow directors and on behalf of the Board as a

whole.)

5. All directors can receive information from other

directors so long as they do not deliberate collectively

with respect to such information, outside of a meeting.

Thus, a director can send an email to all other directors,

even about association business, so long as this action is

one way and not an invitation to open dialog about the

issue. Presumably if a director sent out an email with an

opinion or facts, and said DONT REPLY TO THIS

EMAIL, (and there were no subsequent replies) then

such communication would not violate the Act. Roberts

v. City of Palmdale(1993) 5 Cal.4th 363.

6. The directors can communicate regarding agendas and

date, time and place of proposed meetings.

We hope the legislature clarifies some of these issues, but the

new Davis-Stirling simply recycles this content. If you see

the dilemma, and believe volunteerism will be impaired as a

result of these prohibitions, contact your legislators, and

request some amendments to allow more communication

Documents

Acc Winter 2013