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posted: 5/3/2014 12:01 AM

Board members are not permitted to cast votes by email

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Q. The members of our condominium association board routinely communicate with one another and make decisions by email. Is this permitted?

A. Email voting/decision making or written canvassing of board members to make decisions is not permitted under Section 18(a)(9) of the Illinois Condominium Property Act. These decisions must be made at meetings of the board open to owners.

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This impacts decisions even as routine as whether or not to waive an association's right of first refusal. The law requires decisions of the board, and any vote on matters discussed in meetings or portions thereof permitted by law to be "closed" to owners ("executive session"), be made at board meetings, or portions thereof, open to all owners, called on at least 48 hours prior notice. Email should not be used for the purpose of discussing association matters. Email should be used as a substitute means of delivery for what might otherwise be delivered by mail or in person, other than notice of meetings.

Q. If board members cannot make decisions by email, what are boards to do?

A. As a practical matter, board members may find themselves holding more (but brief) board meetings. For convenience, these meetings may be conducted by conference call as long as notice of the meeting is provided, and owners are permitted to attend (except for portions of meetings permitted to be closed to owners), and as long as there is a location for the meeting where owners can go to listen to the board's conference call by speaker phone.

Q. Our board president continually overrules the majority of votes cast by our board members on the issue of fines for violations. The board has voted on numerous occasions to send a fine to an owner after they have been previously warned in a letter, and our board president overrules the violation without our knowledge. The board's vote means nothing and our president is vetoing the majority rule, and does whatever she chooses. When we vote to fine someone, she requests they receive a second warning letter in lieu of a fine. What can we do about this, as it goes on continuously?

A. The board president does not inherently have any greater authority here than any other board member, and the board president does not have veto power over decisions of the board. It is the responsibility of the board president to carry out and to implement decisions of the board regardless of whether the president agrees with the decision. The board should consider removing this person as president, and replacing her with someone prepared to follow the laws governing the association.

Q. Our board regularly meets to discuss matters concerning our condominium at what we refer to as "workshops." We don't vote on anything at these workshops. Does our board have to post a notice of meeting for these board workshops?

A. At least one Illinois appellate court, in an unpublished order, has found that "workshops" are board meetings if a quorum of the board is present. That is, according to this instructive order, a "board meeting" encompasses discussions by a gathering of a quorum of the board; not just a meeting where the board makes decisions. As a result, notice of the workshop meeting must be given to board members and posted, and owners must be permitted to attend (except for portions of such gathering permitted to be closed to owners). Further, notice of the workshop would have to be mailed to owners, not just posted, if that is required by your association's declaration. And don't forget, minutes would have to be taken, as well.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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