Rob Samouce: Most association board meetings must be open to members

Many of those members of condominium and homeowners associations elected to their board of directors are either current or previous captains of industry. In their private corporate lives they are used to “going into closed executive session” when delicate strategic matters must be discussed by the board.

So it make perfect sense that they believe their association board can also go into closed executive sessions to discuss similar such matters. However, this is not the case in the Sunshine State. There are requirements in Chapters 718 and 720, Florida Statutes that require board meetings to be held “in the sunshine” open to members.

For Condominium associations, Section 718.112(2)(c)., Florida Statutes, provides, in part, that: “Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. . . Adequate notice of all board meetings, which must specifically indentify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting except in an emergency . . . written notice of any meeting at which nonemergency special assessments, or at which amendment to rules regarding unit use, will be considered must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property at least 14 days before the meeting. . .”

This section goes on the say that “Meetings of a committee to take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to this paragraph. Meetings of a committee that does not take final action on behalf of the board or make recommendations to the board regarding the association budget are subject to this section, unless those meetings are exempted from this section by the bylaws of the association.”

Therefore, if you’re condominium association bylaws do not exempt these other committee meetings, then these committee meetings need to be noticed and open to association members the same as board meetings.

Last, this section provides the following two limited exemptions to the requirement for open board and committee meetings.

It goes on to say that: “Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the unit owners does not apply to: a. Meetings between the board or a committee and the association’s attorney, with respect to proposed or pending litigation if the meeting is held for the purpose of seeking or rendering legal advice; or b. Board meetings held for the purpose of discussing personnel matters.”

Very similar open meeting statutory requirements apply to Homeowners Associations. Section 720.303(2), Florida Statutes states that: “(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.”

The section goes on to provide that: “Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors.

Chapter 720 also requires notice of board meetings be posted conspicuously in the community at least 48 hours in advance of the meeting, except in an emergency except for certain board meeting where “written notice of any meeting at which a special assessment will be considered or at which amendments to rules regarding parcel use will be considered must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property . .. not less than 14 days before the meeting.”

There is the ability to provide for alternative notice by broadcast on closed-circuit cable television or electronic transmission for large associations if the bylaws so provide and membership consent is provided for electronic transmission.

A few things to point out about these sunshine provisions that can be important in interpreting them is that the ability to have closed board meetings (without an attorney present) to discuss personnel issues only pertains to discussion about employees of the association and not outside contractors.

If a board wants to have a closed meeting to discuss outside contracted for “management personnel,” then the attorney must be present at such a meeting.

Lots of issues can involve proposed or pending litigation, so if a board needs to discuss such delicate issues in private, it can do so if the association’s attorney is present at the meeting and the attorney client privilege can be invoked to protect the association and the directors.

Next, you will note that the above language provides that you have a board meeting if a quorum of the board is gathered to conduct association business.

A quorum is usually a majority of the board which can be a problem for many associations that have recently been turned over by the developer. This is because many developer documents provide for three-member boards.

Well guess what? If two of the directors are talking at the pool, walking their dogs or having a telephone conversation about association business, they could be in violation of the Florida Sunshine laws. Even if they are not discussing association business, such discussions would have the appearance of impropriety and chances are the conservation would lead to association business.

This is why we recommend that if your bylaws call for a three-member board, you should amend them with a membership vote to have at least five directors. That way it takes three members present to make a quorum so any of the one-on-one conservations between directors should no longer poses a violation of the sunshine laws.