Tuesday, September 8, 2009

Live in the sunshine...Notice and hold all board meetings according to the law

People often state that associations are "subject to the Sunshine Law". In fact, Florida's Sunshine Law deals with the operational transparency required for governmental agencies and entities. However, every common interest ownership statute has its own transparency or "sunshine" requirements that boards must follow.

Meetings of the board at which a quorum of the directors is present and discussing association business constitutes a board meeting and must be open to all owners. There is no getting around this; if there are enough directors sitting by the pool discussing association business to constitute a quorum, it is a de facto board meeting that should have been properly noticed in advance so owners could join in or listen to the discussion.

There is no exception for "executive sessions", brief chats or emails that substitute for a discussion that should more properly take place during a board meeting that is open to the members. Asking your association counsel to sit in on a board meeting does not, in and of itself, make it a closed meeting. Your counsel must be present to discuss proposed or pending litigation to warrant closing the meeting to the owners and even then the closed meeting must still be properly noticed to the members as a closed discussion with counsel regarding litigation issues.

Florida law requires associations to post notice of all regular board meetings at least 48 continuous hours preceding the meeting except in an emergency.

If there isn't a place where notices can be posted, notices of board meetings should be mailed, hand delivered or electronically transmitted at least 14 days before the meeting to each owner in a condominium and 7 days before a meeting in an HOA.

Meetings at which special assessments or rule changes affecting unit or parcel usage must be mailed, hand delivered or electronically transmitted at least 48 hours in advance AND posted conspicuously during that same time period. Special assessment notices must also state specifically that a special assessment will be considered as well as the nature, estimated cost and description of the purposes for such assessment.

Not everything is an emergency that will allow you to forego the typical 48-hour notice. For example, if you forgot to put the new landscaping contract your Board is going to consider on the meeting agenda and the contract takes effect in 1 week that does not mean the Board can address the issue with less than 48 hours notice. An emergency typically connotes danger and that usually involves a casualty event such as a hurricane, fire, flood or the roof caving in.

In a condominium association, only meetings of a committee which can take final action on behalf of the board or which makes recommendations to the board regarding the budget are subject to the same notice provisions as board meetings. All other committee meetings do not need to be open to the owners unless the Bylaws require them to be open. In an HOA, committee meetings at which a final decision will be made regarding the expenditure of association funds or meetings of an Architectural Control Committee are subject to the same notice provisions as board meetings.

Associations that operate in the "sunshine" by letting their members know when, where and why the board is meeting have the best shot at avoiding unnecessary conflicts with owners as well as the greatest likelihood of gaining support for pet projects.

1 comment:

  1. Does a newly elected board need to have its selection of officers done in open session?

    ReplyDelete