Closed session and executive session are the same

Q. Can you please clarify the difference between a "closed session" and an "executive session" of the board? I know there is a difference between the two and would like clarification, since our association has a board member who insists that what the board is doing is an executive session rather than a closed session.

A. Neither term is set forth the in the Condominium Property Act or in the Common Interest Community Association Act. Rather, they are terms that have developed informally, and are used interchangeably, to refer to the portion of a board meeting that is not legally required to be open to unit owners.

Q. We have a board meeting scheduled soon with only one voting item on the agenda. We have a seven-person board, and four board members will be in attendance at the board meeting. Two of those four board members will be abstaining from the vote, so that only two board members will vote. If both of these board members vote in favor of the matter being considered, will the vote pass?

A. Your declaration provides that a majority of the members of the board constitutes a quorum for the transaction of business at a meeting of the board. Therefore, the presence of four board members at a board meeting would constitute a quorum.

Your declaration further provides that the act of a majority of the members of the board present at a meeting at which a quorum is present shall be the act of the board. Robert's Rules of Order provides some guidance here. Where a majority vote of the votes cast is required, abstentions have absolutely no effect on the outcome of the vote, since what is required is a majority of the votes cast. However, as with your declaration, if the vote required is a majority of the members present, an abstention will have the same effect as a "no" vote. Even in such a case, an abstention is not a vote and is not counted as a vote.

So, under your example, if four board members are present, a "yes" by three board members would be required in order for a motion to be approved. Therefore, the motion would fail if two of the four board members present at the board meeting abstain.

As an aside, the absent board members could participate and vote in a board meeting (or a portion of the meeting) by speaker phone, so long as everyone attending the meeting could speak with and hear from the absent board member.

Q. I think I read that an association cannot prohibit a member from placing a flagpole in his front yard. We live in a community that forbids a flag anywhere other than on the front of the home. What's the law on this?

A. This is an issue that comes up from time to time and, with Memorial Day coming up soon, is timely. A board may not prohibit the display of the American flag or of a military flag, or both, or the installation of a flagpole, on or within the limited common areas and facilities of a unit owner or on the immediately adjacent exterior of the building in which the unit of an owner is located. This applies regardless of any provision in the declaration, bylaws, rules, regulations, agreements or other instruments of a condominium association or a master association or a common interest community association.

That said, a board may adopt reasonable rules and regulations, consistent with the United States code, regarding the placement and manner of display of the American flag, and of a military flag, and regarding the location and size of flagpoles.

• 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.