Keep editorial comments out of meeting minutes
Q. A board member in our association often demands that his editorial comments on an issue be written into the meeting minutes. What are your thoughts on this practice?
A. I do not suggest including editorial comments or opinions of board members or owners in the minutes. Minutes that are too extensive, or record such statements, may include incorrect information from unqualified persons that could be used against the association in litigation.
Minutes should describe the meeting (e.g., "Minutes of April 1, 2011 Meeting of the Board of Managers of ABC Condominium"), identify which board members are present or absent, identify management representatives and any guest speakers who are present, and should indicate that a quorum of the board is present.
Minutes should reflect the time the meeting is called to order and when it is adjourned. If a board member arrives late, or leaves early, the minutes should note this and the specific time. It is also helpful to organize the minutes to mirror the meeting agenda.
Minutes need to accurately record matters considered and action (votes) taken by the board on agenda items and on matters added to the agenda. That is, the minutes need to identify, in appropriate detail, the motions made by board members and reflect the results of a vote taken.
If the board is voting on an asphalt pavement seal-coating contract, do not merely state "The board discussed seal coating and approved the contract." The point is that someone should be able to pick up the minutes in the future and understand exactly what action was taken by the board.
Once the meeting minutes have been approved, they should be signed and dated by the board secretary and indicate that they have been approved. Approved minutes should be kept in an organized set of minute books (and not simply tossed in some file or drawer), where they can be located when needed.
Q. One of the board members of our association misses most of our board meetings. Can the board declare the seat vacant and appoint another owner to fill the vacancy?
A. Unless the association's declaration specifically states that a board member is deemed to have resigned if they have missed a certain number of board meetings, the board cannot declare a seat vacant.
However, failure to attend board meetings may be a breach of fiduciary duty. The board should review the association's governing documents to determine what is required to remove the board member, and consider implementing those procedures. Do note that a board member is nonetheless exposed to liability for decisions of the board even if the board member did not attend the meetings where the decisions at issue were made.
A board member who is routinely unable to attend board meetings would serve the association well to resign.
Q. What recourse does a unit owner have to deal with an inept board member?
A. The most efficient way to deal with an incompetent board member is to vote in another person at the next opportunity. If the board member's term doesn't expire for a while, the owners can seek to have the board member removed from the board by a vote of the owners.
Q. The president of our homeowner association only votes at board meetings if there is a "tie" vote on a matter. Is this proper?
A. Board members are elected to make decisions. The board president, like every other member of the board, does have a vote and should exercise his or her right to vote. Unless there is a legitimate reason to "abstain" from voting on a particular issue, all board members, including the president, should vote. Otherwise, not voting is arguably a breach of a board member's fiduciary duty.
• 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.