Client Alert: Virginia Legislature Authorizes Electronic Board Meetings During State of Emergency

Date: April 23, 2020
Emergency legislation has been passed in Virginia to allow common interest community boards of directors to meet electronically during a declared state of emergency.  Under current Virginia law, at least two directors must be physically present in the meeting room even during meetings in which the rest of the board participates remotely.  Under the new legislation, however, no one needs to be physically present in a central meeting location during a declared state of emergency.  This legislation will not become law until signed by the Governor, but we expect that he will do so in the near future.
The legislation allows the board to meet by “electronic communication means” without anyone being physically present when the Governor has declared a state of emergency.  The conditions are that:

-              (i) the nature of the declared emergency makes it impracticable or unsafe for the governing board to assemble in a single location;
-              (ii) the purpose of meeting is to discuss or transact the business statutorily required or necessary to continue operations of the common interest community association and the discharge of its lawful purposes, duties, and responsibilities; and
-              (iii) the governing board shall distribute minutes of a meeting held pursuant to this subdivision to common interest community association members by the same method used to provide notice of the meeting.
The Association has to give advance notice of the electronic meeting to the members “using the best available method given the nature of the emergency.”  Notice to the membership must be given at the same time that notice is given to the board members. 
The Association also has to make arrangements for member access to the meeting through electronic means including, to the extent practicable, videoconferencing.  The members should also be allowed to make comments at an appropriate time during the meeting.
Regarding minutes of the meeting, the fact that the meeting was held by electronic communication means, and the type of electronic communication means by which the meeting was held, shall be stated in the minutes.
For now, this is temporary legislation and only applies during a state of emergency, but it certainly applies to the current circumstances.
Boards must still comply with other procedural requirements, including quorum and restrictions on the use of executive session.  In addition, the language of this legislation suggests that boards should only consider the most important matters when taking advantage of electronic meeting procedures and should put off lesser items until “normal” meeting procedures can again be followed.
Finally, boards must keep in mind that these procedures are only authorized during a state of emergency as declared by the Governor, and once the state of emergency expires, existing statutory meeting procedures must again be followed.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.