Use of commissions

Several years ago, I did a series of articles on the use of committees and commission in associations. Given case law scrutinizing the actions of boards, I am going to revisit the use of commissions in associations, their specific authority and how they are properly established.

One of the methods used to delegate a board's function is the appointment of committees and/or commissions. Indeed, many associations use committees and commissions of both board and non-board members. It has to be noted that committees and commissions are legally distinguishable and have significantly different functions and power. Many, many boards establish committees that are really commissions.

The general not-for-profit corporation act, applicable to incorporated associations, as well as to all condominium associations whether or not incorporated, governs the use of committees and commissions. The board can establish committees if, and only if, the association's articles of incorporation or bylaws grant the board the power to do so. The governing documents for most associations do not grant authority to establish a true committee.

On the other hand, the board may appoint commissions, without any express authority in the association's governing documents. While a committee can make decisions binding on the association, a commission may not act on behalf of the association or bind it to any action.

A commission can make recommendations to the board. However, only the board can take action with respect to recommendations made by a commission. In this regard, a commission is essentially an information gathering body, providing the board with data that it will consider in making a decision.

Commissions are often used, for example, to conduct searches for property managers, vendors like landscapers and roofers, and to prepare suggested rules.

The board can create and appoint people to a commission, advisory body or such other body. Examples of the purposes for which commissions are frequently established is to make recommendations regarding rules, or decorating projects, or landscaping projects. But they can be established for just about any matter the board wants a group to study and report back for it to act upon.

A commission or commission needs to be established by the board, at a board meeting. Similarly, the appointment of people to serve on the commission, and the chair of the commission, needs to occur at a board meeting. None of the appointees to commissions have to be members of the board.

So, a commission can be made up entirely by non-board members. The purpose for which the commission is created should be set forth in a charter, although it can be brief, approved by the board at a board meeting.

Meetings and actions of commissions can generally be conducted and performed on an informal basis. Unlike committees, since commissions do not conduct board business, meetings of commissions are not subject to notice requirements; that is, unless the commission includes a quorum of the members of the board of a condominium association (but that would be very unusual).

The use of commissions may enhance an association's operations, and permit the board to leverage its time. Successful participation on a commission by a non-board member can be a springboard to election to the board, and service on a commission can be an effective means to "groom" owners for future service on the board.

• 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.