Do You Swear to Tell the Truth, the Whole Truth, and Nothing but the Truth . . .
There are a number of ways an upset homeowner could choose to express their discontent with their association, the board, or another resident. They could raise concerns at a meeting, complain in writing, or even run for the board to try to make policy changes. Instead, unfortunately, sometimes they choose to interrupt, disrupt, shout over others, and generally hijack the meeting. One way we’ve seen this play out is when an owner insists upon recording a meeting.
An owner’s insistence on recording an association or board meeting presents several practical and legal issues. Practically, it can hamper the free exchange of ideas. If owners or directors know they are being recorded by another owner, they can be less likely to engage in discussion because they might be shy, embarrassed, or they may feel threatened. Anyone who has been interviewed on camera or the radio knows that it impacts how you communicate. Recording can also be a not-so-subtle threat against the board or another resident. In this way, recording a meeting is about influence and power, comparable to bullying.
Legally, recording a meeting presents a host of issues. Washington happens to be a two-party consent state, meaning it is unlawful for any individual, partnership, corporation, association or even the state or its agencies to record a private communication without first obtaining consent. RCW 9.73.030. (In Oregon, two-party consent is also required, but the statute makes exceptions that may apply to association meetings. ORS 165.540.) Most association meetings are accurately classified as private meetings because only association members or their agents can attend, not public meetings where anyone may attend. Accordingly, unless everyone consents to being recorded, it is most likely unlawful (in Washington) to do so.
Even if recording is unlawful, whether the police will enforce, or a court will order an injunction, are separate, practical issues. A more real-world alternative is for a board to adopt rules and fines governing conduct at meetings that prohibit recording devices. After all, the First Amendment does not apply to private organizations, so there is no constitutional right to record an association meeting that would override a rule. Most associations have the authority to determine policies and procedures applicable to meetings, and can do so via rulemaking.
Boards should consider if their association has policies for conduct at meetings. If not, consider consulting with your manager and association legal counsel for guidance.