In Florida, Boards of Directors are required to hold meetings in the open. Transparency in the decision-making process is required. Any time a quorum or more of the Board meets and discusses Association business, such gatherings are considered a Board meeting requiring proper notice to the unit owners. However, as with every rule, there are exceptions. In this case there is an existing exception and one that will begin on July 1, 2011.
The current exception is that meetings between the Board and the association’s attorney, with respect to proposed or pending litigation, may be held in a closed session, when the meeting is convened for the purpose of seeking or rendering legal advice. Please note that the attorney may be present either in person or via speaker phone.
Beginning on July 1, 2011, there will be one other exception to the open-meeting rule. Section 718.112(2)(c)(3), Florida Statutes, will be amended to allow the Board, without the Association’s attorney being present, to hold a closed meeting for the purpose of discussing personnel matters. Therefore, if the Board wishes to discuss the hiring or firing of an employee, it may now do so, without an attorney, in a closed session.
The standard 48-hour notice should be posted for both types of meetings. The notice / agenda should state either: "Closed meeting to discuss proposed or pending litigation," or "Closed meeting to discuss personnel matters," depending on the type of meeting being held.
Mark D. Friedman is a senior attorney at the law firm of Becker & Poliakoff, P.A. Mr. Friedman may be contacted at CondoLaw@becker-poliakoff.com.
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Is it mandatory that the committee meetings leading up to the Board of Directors meeting all be open to all.
ReplyDeleteIf that is the case, how does a committee chair deal with the few disgruntled who show up only to disrupt meetings. They have the same questions which have been answered over and over and never a positive suggestion to offer.
Mollie,
ReplyDeleteCommittees that take final action on behalf of the Board or make recommendations to the board regarding the association budget must notice their meetings 48 hours in advance, and the meeting must be open to the unit owners.
Committees that DO NOT take final action on behalf of the board or make recommendations to the board regarding the association budget must notice their meetings 48 hours in advance and the meetings must be open to the unit owners, UNLESS the bylaws provide otherwise. Therefore, an amendment to your bylaws may help for these types of meetings.
Hi Mark,
ReplyDeleteAt a special meeting of the board, convened for the sole purpose of conducting a face-to-face interview with a prospective purchaser or lessee, information discussed at such meetings may be highly confidential. Other than amending the Bylaws to provide for closed meetings in such instances, how would you proceed? Would it be prudent to have an open meeting to discuss the rights and responsibilities, rules and regulations, and then go into Executive session to discuss private and personal issues?
Randall,
ReplyDeleteThere is no exception in the statute for the closed executive committee sessions of the Board that you suggest. It is also important to note that the Association should have screening guidelines in its Declaration of Condominium authorizing such face-to-face interviews.
Thank you Mark for your response,
ReplyDeleteI am aware of the limited instances that statute specifically provides for closed meetings of the board, as well as the increased restrictions placed on accessing certain official records.I also realize that the screening process contained in the Declaration of Condominium must be specifically and clearly addressed. It is a given that board interviews relating to the screening process, may require the discussion of criminal history, income, credit history, assets, and disability related information (to support requests for reasonable accommodations and modifications). Since such information is clearly confidential in nature, how would a board proceed to discuss such issues without violating the open meeting laws of Florida on the one hand, and protecting the confidential information of the applicant on the other? I'm pretty certain that this issue has been raised during the course of your practice, since the screening process is provided for in most condominiums in Florida. Please share with me your opinion as to the procedure which can be effectively used, without risking violations of statute.
Randall,
ReplyDeleteThis forum is not appropriate for specific legal opinions, as each condominium association's governing documents must be reviewed to determine whether interviews are required or even permitted, the extent of the Association’s screening authority, as well as who is required to conduct the interview.
Please remember that the statute provides: "Meetings of the board of administration at which a quorum of the members is present shall be open to all unit owners."
Therefore, if less than a quorum of the Board meets with the prospective purchaser or tenant, there is, technically, no Board meeting. For example, if two members of a five member Board conduct the interview, there is no quorum and no requirement for a notice and unit owner participation. The interviewers can provide a report to the full Board which can then vote on this information at a regular Board meeting. Section 718.111(12), Florida Statutes, requires that the information obtained remain confidential so the Board would not discuss the notes, only vote to approve or disapprove. Again, I recommend that any Board contemplating this type of process consult with its own legal counsel before taking such action to ensure compliance with that association’s governing documents.
Hi Mark,
ReplyDeleteI knew that you would offer both a legally acceptable and functional approach to this very common issue. Your exceptional response was right on the mark... no pun intended.