– By Jeffrey R. Pratt, Esq. (originally published in April, 1998)
The question often arises whether a member should be allowed to tape record a meeting of the board of directors of a homeowners association. For the reasons discussed below, it is generally recommended that the board not allow the meetings to be tape recorded. To prevent tape recording, associations should establish a written rule prohibiting the recording of meetings, so that members are aware of the policy.
The first reason that highlights the prudence of a prohibition on recording meetings is the questionable motive of the member who wishes to record. It is doubtful that a member who wishes to tape a meeting will use the tape and its contents as a home study educational course on association management, nor does it fit the description of “books on tape.” More likely than not, the “recorder” has an agenda. Usually, the member either wants to build a case against the association or its board members, or wants to put board members “on the spot” by recording their statements at the meeting. Conduct of this sort increases the potential for conflict at the meetings, makes it more difficult for associations to conduct business, and creates possible liability problems in the future.
The second reason for prohibiting tape recording is that associations have ability, by the exercise of their authority, to avoid the potential problems tape recording presents. California Civil Code Section 1363(d) gives associations the authority to adopt rules and regulations, or parliamentary procedures, to govern meetings, provided these regulations are not in conflict with governing laws. Tape recording, in this context is not a constitutionally protected right, nor does prohibiting it impair the “free speech” or “due process” rights of the person who wants to record. In the absence of any statutory or constitutional prohibitions (of which there are none), a board’s authority would be limited by the governing documents, which are usually silent on this issue. (If anything, governing documents encourage associations’ efficient operation.) Thus, unless the governing documents provide otherwise, an association’s ability to govern its meetings includes the right to prohibit tape recording.
A third reason for prohibiting the recording of association meetings is that this activity inhibits the members’ and directors’ expression of their free speech, since people may reasonably fear that what they say will be taken out of context or used against them improperly, especially when preserved for posterity in recorded form. The meeting should be an opportunity for members to air their concerns. The opportunity to do so is even guaranteed in California Civil Code Section 1363.05, which requires that association meetings, except executive sessions, be open to any member of an association and, further, that any member shall be permitted to speak. Tape recording only inhibits this openness.
The pitfalls of allowing a member to unilaterally record an association’s open meetings brings to mind the reason for Sergeant Friday’s often quoted line on the 1960s television show Dragnet: “You have the right to remain silent; anything you say can and will be used against you.” Without doubt, tape recording of a member’s or director’s statements at association meetings amplifies the opportunity for those statements to be played back for an unintended audience in the future, or used in a manner that is neither as the speaker intended nor in the speaker’s best interest.