Boards, Owners Bound by Meeting Law

Article excerpt

Byline: Jordan I. Shifrin

The requirement that associations conduct their meetings in front of owners is referred to as a "Sunshine" law in many states.

For those who have had the honor and privilege of serving on a board, some may refer to this as the "black storm cloud law".

Illinois, as is the case with most states, requires that all business conducted by an association or a co-op board of directors must be done pursuant to proper notice and in an open setting where business is conducted, notes are taken and minutes necessary. The meeting is open to an owner who wishes to avail themselves of the opportunity.

In Illinois, we also have a specific statute called "The Open Meetings Acts" which requires "Public Bodies" to conduct their business at public meetings. "Public Bodies" encompasses the multiplicity of municipal corporations, school, library, mosquito abatement districts, etc. Condominium and homeowners' associations are not public bodies by definition and therefore are not governed by the act.

The following are association-related statutory requirements and the applicable laws.

Condominiums:

Section 18(a)(9) of the Illinois Condominium Property Act requires "that meetings of the board of (managers) directors shall be open to any unit owner."

Several things should be noted. First, the prominent omission of the word "all." Not all meetings are open.

There are three express exceptions and a fourth which is implied.

Meetings held to discuss litigation, conduct hiring and firing of employees and discuss violations and delinquencies. Several other considerations are implied. Illinois case law suggests that for closed session purposes, employees also includes contractors. So, yes, a board can meet in closed session to sort through bids, review contractor or employee qualifications and experience.

Litigation implies meeting with the attorney which is subject to confidentiality restrictions. Therefore, as a result of the attorney-client privilege, and the duly-elected board being the "control group" for the client which is the association, it is logical that the attorney can meet with the board at any time to discuss confidential matters not subject to open meetings.

Next, "any vote on these matters shall be taken at a meeting or portion thereof open to any unit owner." Any limitation in this statement is that discussion can take place in the closed session, but the official vote is held at the open meeting. This necessitates recording it in the minutes, which is legally defined as "conducting business". Therefore, a discussion, note and recording in the minutes is official board action. As a result, it can be construed that any topic that is in the best interests of the association that can even remotely relate to the three exceptions can come under the implied fourth exception of "not conducting business," which means not voting.

Several other points worth noting; the condominium act requires that notice of a board meeting "shall be mailed or delivered at least 48 hours prior thereof, unless a written mailing of such notices is signed..." and that copies of notices of meetings ... shall be posted in entranceways, elevators or other conspicuous places in the condominium at least 48 hours prior to the meeting..."

Therefore, to exploit two myths at once, the board can publish an annual list of meeting dates since it is "at least 48 hours in advance. …