Unit owners can attend any board meeting

Q. Can the board assemble outside the presence of unit owners to discuss association matters?

A. In general, not anymore if the association is a condominium or common interest community association. Informal gatherings of the board, referred to as "workshops," are usually held as planning sessions for a board during which no vote or formal actions are taken. The appellate court of Illinois ruled earlier this year that a board is "conducting board business" at these gatherings where a quorum of board members are present, and therefore they are meetings under the statutory definition of a "board meeting." As such, notice of these meetings of the board when a quorum is expected must be issued, and owners permitted to attend, even if no vote is to be taken on any matter.

Q. Under what circumstances may the board of a condominium or common interest community association meet in executive (closed) session?

A. In general, meetings of a quorum of the board must be open to any unit owner. Owners have to be permitted to attend board meetings, but owners do not necessarily have a right to participate - after all, it's a "board" meeting. There are nonetheless three exceptions that permit portions of a board meeting to be held outside of the presence of unit owners. This portion of a board meeting is commonly referred to as an "executive session," or a "closed session."

Portions of a board meeting can be conducted in executive session (1) to discuss litigation when an action against or on behalf of the association has been filed and is pending in a court or administrative tribunal, or when the board finds that such an action is probable or imminent, (2) to consider information regarding appointment, employment or dismissal of an employee, or (3) to discuss violations of rules and regulations of the association or a unit owner's unpaid share of common expenses.

However, and this is often overlooked, any actual vote on matters discussed in executive session must be taken at a portion of a meeting open to any unit owner. So, for example, a board may conduct an owner's rules violation hearing in executive session; however, the vote on whether a violation occurred and the fine to be levied must be voted upon during the open session of a board meeting.

Q. What is the procedure for a board to go into an executive session?

A. First, at a duly noticed and called board meeting, the meeting is called to order and the board conducts its regular business, if any, at the open portion of the board meeting. When it is time to go into executive session, a motion is made to go into executive session, seconded, and voted on by the board.

Owners are then excused from the meeting and the board then discusses the matter entitled to be discussed in executive session. When the executive session discussion is concluded, and it is time to go back into open session, a motion is made to come out of executive session, seconded, and voted on by the board. Owners (who may be hanging around outside of the meeting room) are then invited back into the meeting room. The board may then vote on the matter that was the subject of the executive session.

Occasionally, the only item on the agenda for a board meeting is a matter to be discussed in executive session. The forgoing procedure must nonetheless be followed, since the vote on the matter must take place at an open meeting of the board.

Q. Can a board make an emergency decision outside of a board meeting?

A. Neither the statutes that govern Illinois associations, or case law, provide for emergency board meetings called on less than 48 hours' notice, or for informal board decisions (emergency or otherwise) to be made outside of duly called and held board meetings. These actions could be deemed a breach of fiduciary duty, and your board should consult with its attorney on how to handle these emergency situations. Look for the legislature to address this issue in 2015.

• 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.