Open meeting laws

Q. As I understand it, the board of our condominium can ratify unanimous decisions at board meetings, after the decision is made and action has already been taken outside of a meeting. However, I understand we may not act on decisions that are not unanimous without an open dialogue at a regular open meeting of the board. Is this correct?

A. No. There is no authority for the board to make decisions on general matters outside of a board meeting (whether or not the decision is unanimous), and then to later ratify the decision at a future board meeting. This was underscored in the 2014 Illinois Appellate Court Decision in Palm v 2800 Lake Shore Drive Condominium Association.

Not only must all board voting occur at meetings open to owners, so must all board discussion or consideration of association matters, except for discussion or consideration of the three specified exceptions set forth in Section 18(a)(9) of the Illinois Condominium Property Act that deals with closed sessions. Accordingly, notice must be provided for, and owners permitted to attend, any gathering of a quorum of the board where association business will be discussed.

Owners may be excluded from those portions of a board meeting permitted by law to be closed to owners. Votes on matters permitted to be discussed in a closed executive session must be taken during a portion of a meeting open to owners.

However, effective June 1, Section 18(a) of the Condominium Property Act was amended to add a new subsection 21 that addresses "emergencies," and provides:

"That the board may ratify and confirm actions of the members of the board taken in response to an emergency, as that term is defined in subdivision (a)(8)(iv) of this Section; that the board shall give notice to the unit owners of: (I) the occurrence of the emergency event within seven business days after the emergency event, and (ii) the general description of the actions taken to address the event within seven days after the emergency event.

The intent of the provisions of this amendatory Act of the 99th General Assembly adding this paragraph (21) is to empower and support boards to act in emergencies: "Emergency" means an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the unit owners.

So, except in an "emergency," there is no authority for the board to make decisions outside of a board meeting (whether or not the decision is unanimous) and then to later ratify the decision at a board meeting. Discussions (except for portions of board meeting permitted to be closed to owners) and decisions must be made at board meetings, with proper notice and that are open to owners. Some associations are addressing these limitations by adopting a resolution at a board meeting delegating certain decision making to a board member.

Q. Disgusted by what was going on at a board meeting, one of the board members stood up and announced, "I resign," and then left the meeting. The board members then debated whether this person was still on the board. Was the verbal resignation sufficient?

A. The verbal resignation was not effective. Under the Illinois General Not for Profit Corporation Act, a director may resign at any time by written notice delivered to the board, or to the president or secretary. Written resignation is effective when delivered, unless the notice specifies a future effective date. The purpose of requiring that a resignation be in writing is to avoid any dispute as to whether action constitutes a resignation.

When a board member declares their "resignation" verbally, they should immediately be requested to confirm the resignation in writing. As an aside, and contrary to the understanding of many "acceptance" of the resignation of a board member by the board is not required. Rather, the resignation should be stated in the minutes of the next board meeting.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. 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.