Tuesday, April 27, 2010

Does having a lawyer present mean you can always close your meetings?

I recently received a call from a client asking me to send over one of my attorneys for a board meeting that night. When I asked what the purpose would be for the attorney to attend, the answer was: “So we can hold a closed meeting of course!”

Well there are a few problems with this request. Boards can close their meetings if they are meeting with the association’s attorney regarding pending or proposed litigation when the meeting is held for the purpose of seeking or rendering legal advice. In other words, you can’t ask your association attorney to sit and listen to regular board discussion on a variety of matters for the sole purpose of closing the meeting to your members.

Meetings of a committee to take final action on behalf of the board or make recommendations to the board regarding the association budget also must be held in an open forum unless the attorney is present to discuss proposed or pending litigation and legal advice is being sought or rendered. 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 can be closed to member participation only if the bylaws of the association provide for same.

Even when your board or committee is within its rights to close a meeting to member participation, notice for such meeting must still be posted with an agenda line item indicating that a closed meeting to discuss proposed or pending litigation with the attorney will take place. There are legitimate reasons to close a meeting with counsel to protect legal strategy and preserve the attorney-client privilege. On the other hand, the membership’s right to be informed about the business of the association compels as much transparency as necessary to balance and protect both goals.

8 comments:

  1. Donna, The President of our Association recently sent an email out that she was having two types of meetings, a "planning meeting" to discuss rules & regs and repair items, she stated that it would be a closed meeting to homeowners, she also commented that this would be legal according to our By-laws as long as notes are taken and recorded in the minutes book. I personally know our by-laws and doc's very well as I have done extensive research for the board. Our by-laws do not state any such thing! There will be no attny at this "planning meaning" and no litigation disscussion will be taking place. She also is having a "budget workshop" meeting, again a quorum will be present and it is not open to homeowners. Isn't this a violation according to FAC and 617 and 718 (We are a FLA condo association). Although I agree with having a workshop and planning meeting, I do not agree with not posting and I do not agree that by FLA law she has the authority to close these meetings to our homeowners. What are the ramifications of these actions? What is your opinion? Please note, this President has a history of non-transparency.
    Thank you, Tami

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  2. These types of "executive sessions" and "planning meetings" can certainly occur but if there is a quorum of the board present discussing association business it is a de facto board meeting which must be open to the owners and properly noticed in advance. The statute supercedes whatever the governing documents may say in this regard although you have indicated that in your cases the documents do say what this president says they do. Legitimate closed sessions between the board and the attorney to discuss pending or propoed litigation still must be properly noticed in advance so the members are aware that such a meeting is taking place. Your board needs to be educated on the requirements for open board and committee meetings. The consequences of holding closed meetings unnecessarily is an erosion of trust between the membership and its elected board which is never a good thing. The Ombudsman's Office might be of use in contacting them to provide such information if hearing it directly from you isn't convincing enough!

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  3. Donna-might you be willing to provide the statute/admin code citation supporting the requirement that "Even when your board or committee is within its rights to close a meeting to member participation, notice for such meeting must still be posted with an agenda line item indicating that a closed meeting to discuss proposed or pending litigation with the attorney will take place." Thanks much.

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  4. Donna-might you be willing to provide the statute/admin code citation supporting the requirement that "Even when your board or committee is within its rights to close a meeting to member participation, notice for such meeting must still be posted with an agenda line item indicating that a closed meeting to discuss proposed or pending litigation with the attorney will take place." Thanks much.

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  5. It is not a statute or code provision, it is a ruling in an arbitration case. The name of that case was Janet Nasif v. Continental Towers, Inc. Case No. 96-0403.

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  6. Does the attorney have to be present at the closed door meeting? My HOA had a closed attorney-client meeting and then when the minutes came out the atty was not even present. They say "go fly a kite" when questions are asked and they claim attorney client privilege simply to avoid answering questions.

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  8. The answer is obvious from the question. Yes, you must have an attorney present in order to have a closed meeting due to the presence of an attorney to discuss confidential matters.

    You can also check the attorney's invoices to see if he or she attended the meeting on the date in question.

    If your board is using this as an excuse not to be bothered with membership input at their meetings, I suggest you vote in a more responsible board. Good luck.

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