HOA Homefront: What minutes are… and aren’t

Corporation are legal fictions — a game of pretend in which fictional entities are created registering with the state.

Once registered, corporations have legal rights very similar to those of humans. However, since corporations primarily act through their boards, a permanent record, minutes, of those actions must be kept.

Minutes are the official record of what a corporate board decided. If the minutes do not mention a decision, then for the purposes of the corporation it didn’t happen. So it’s critical to make sure minutes record every motion.

Too many secretaries (and some managers) take minutes far beyond what they are intended to document. How many times do we see in meetings a secretary, manager or recording secretary furiously writing or typing, trying to keep up? By including too much detail in the minutes, they deprive themselves of the opportunity to participate in deliberations.

Minutes should record the:

• Date/time/place of meeting

• Which directors attended

• What reports were received

• What motions were made and what was the outcome

• Time of adjournment

Minutes should not record comments regarding motions and are not intended to be a transcript of the deliberations. Minutes also should not record open forum commentary. The only people trained to create accurate transcripts are certified shorthand reporters (aka court reporters), and HOAs surely cannot afford them. Trying to record or even just synopsize comments is a hopeless task – there will always be someone demanding further revisions because “that isn’t what I said.”

Occasionally, a director or open forum commenter will demand that you “put that in the minutes,” but since comments don’t go in the minutes, secretaries don’t need to obey that demand.

Secretaries often try to summarize the high points of reports submitted to the board, but that is unnecessary because committee reports should be submitted in writing. If there is any question about the report’s contents, the report itself can be reviewed – there is no need to summarize the report.

Minutes should record the motion with sufficient detail so that the record is clear what was the decision proposed. Simply saying “I move item No. 4” is not fair to the members and does not make a sufficiently clear record of what the motion proposed. Secretaries should ask the motion maker to clarify the motion if they do not understand the decision proposed.

The votes on all motions (except those that are withdrawn or die for lack of a second) should be recorded in the minutes. Normally, minutes do not record how each director voted unless there is a director request for a recall vote. HOWEVER – note that if your board meeting is virtual that ALL votes must be by roll call per Civil Code Section 4926(a)(3).

There are times when the board is making a decision of such importance that it needs to record for posterity the business judgment factors involved in the decision. Board resolutions, not minutes, are the best way to do that. The resolution is often drafted with the help of the HOA’s attorney and can be attached to the minutes as part of the HOA’s records.

If minutes are not overdone, secretaries should be able to participate in deliberations and promptly have draft minutes available for member review to comply with Civil Code Section 4950(a).

So, secretaries, take hope!

Richardson is a fellow of the College of Community Association Lawyers and partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com. Past columns are at HOAHomefront.com.