Q: We live in a Manatee County HOA community with a seven-member board. We have five active committees, each having at least one board member serving as liaison and attending their respective committee meetings.
Almost routinely, three of the other board members attend the meetings as “observers,” though occasionally they may be asked verbally to provide background information on the committee business at hand.
Most of our board members feel that it is within Florida Sunshine laws for a quorum of them to attend these meetings, because (1) proper noticing has taken place and (2) even though they all may not participate in some manner, the decisions approved by a vote of committee members is merely that.
I would appreciate your opinion on some questions that I have.
When there is a quorum of board members present at any properly noticed committee meeting, does that gathering, in essence, become a board meeting? If so, do the committee’s decisions then become board- approved actions?
Further, do the circumstances thus negate the need for board approval at their own properly noticed meeting to be held later?
– Anonymous, via email
A: It sounds as if you live in a community where residents are active in its affairs. That is almost always a sign of a healthy community.
The State of Florida’s Sunshine Law applies to most governmental bodies, but not to community associations.
Essentially, what that law means is that no two members of the same body may communicate with one another outside of an open, official meeting (in the sunshine), and that any exceptions to that rule are narrowly construed.
The laws governing community associations (condos and HOAs included) are similar, but not quite as strict. For these organizations, it is a quorum of the board or official committee that generally cannot meet to discuss board or committee business (as applicable) outside of an open, properly noticed meeting.
Narrow exceptions do exist. Meetings of the board to discuss proposed or pending litigation with the association’s legal counsel, or meetings to discuss personnel issues, may be conducted in private.
The questions you have posed fall into somewhat of a gray area. Directors, just like any other owner, are entitled to attend committee meetings and may speak if called upon.
What a quorum of the directors may not do is to begin a dialogue among themselves at such a meeting without noticing such activity as a formal board meeting.
The rule that I have always instructed association clients to follow is simple in theory, but is sometimes difficult to follow. That rule is, anytime a quorum of the board is present and begins to talk about association business, a de facto board meeting occurs.
This could be at the association holiday party. It could be while lounging at the pool. It could be on the golf course. It could be anywhere, but it has to be open to the membership and properly noticed, even if no formal action is taken.
I would recommend that a quorum of the board not be present for committee meetings just to avoid the appearance of impropriety.
If a quorum will be present or is likely to be present, the safest practice is to just notice the session as a joint committee/board meeting at which no formal board action will be taken.
A committee meeting at which a quorum of the board is present is not a legal substitute for a board meeting, and any action taken at such a committee meeting is not proper, official board action.
THERE’S AN APP FOR THAT, TOO?!
I am not tech savvy.
I did not like it when faxes overtook “snail” mail as the preferred form of business communication. I liked it even less when email took over.
Although I get that we are now able to communicate faster and maybe more efficiently, it comes at a price, and that price is sometimes “artificial” urgency. Not everything needs to be, or should be, rushed.
I remain a fan of books — books that I can dog-ear.
When I attend an association meeting, I usually have a copy of the applicable statutes and administrative rules with me. I also carry an abbreviated version of Robert’s Rules of Order.
Now, I guess I am really going to have to be dragged, kicking and screaming, into the modern age.
A smartphone app has been created that includes those items and much more.
The creator of the app has been quoted as saying that she created it “after years of seeing board members held hostage by the community’s ‘resident parliamentarian’ quoting chapter and verse . . . with no one able to verify the accuracy of the information being spouted.”
I see a potential for chaos here, with meeting attendees whipping out iPads and reading and trying to interpret complex laws on the fly.
Ever go to a meeting and watch people reading their emails and texting from their smartphones? Are those people even listening to what real, live people are discussing at that meeting?
The stated goal for the app is to “cut down on board meeting brawls” by somehow leveling the legal-knowledge playing field. Did I mention that the app creator is a community association attorney?
If people start using it, this app may create more delay and discord at meetings, not streamline them. I am sure the attorney knows that.
Most of us bill by the hour to attend meetings, after all.
Now that I have that off my chest, I need to go tell some young whippersnappers how I walked uphill both ways in the snow to go to school.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years’ experience. She concentrates her practice on community associations and real estate. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
