Most board decisions should come at meetings

Q. I am a board member for a condominium association. Our property manager repeatedly emails board members for requests to vote on proposals received in between open meetings. These proposals are not for emergency situations. I have expressed my concern that this is in violation of the condominium laws, and I will only vote outside of an open board meeting in an emergency situation as defined by the Illinois Condominium Property Act. Even in true emergency situations, homeowners are not notified and, in the past, these emergency decisions are not ratified at a board meeting and recorded in the minutes. Our property manager states that this is legal, and our board president states that business needs to be conducted between meetings. Who is correct here?

A. Initially, associations should seek and rely on guidance on legal issues from an attorney, as the "advice" given to your board puts the board in legal peril.

In general, decisions of the board must be made at meetings of the board, with proper notice, that are open to the unit owners. In general, decisions cannot be made between meetings and/or by email vote of the board. There is an exception in the event of an emergency.

"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.

The Illinois Condominium Property Act provides that the board may ratify and confirm actions of the members of the board taken in response to an emergency. However, in such a case, the board must give notice to the unit owners of the occurrence of the emergency event within seven business days after the emergency, and the general description of the actions taken to address the event within seven days after the emergency.

I agree with the board president that certain association business needs to be conducted between board meetings. By a properly adopted resolution of the board, the board can delegate between-meeting expenditures or decision-making to a board member or board members. The board should consult with its attorney as to how it can accomplish this.

Q. I understand that a quorum of the board of a condominium can consult with the association's legal counsel without having an actual board meeting. If the board members "c.c." legal counsel on email discussions among all the board members, regardless of the topic, can the board avoid holding a board meeting?

A. As set forth in Section 18(a) (9)(A) of the Illinois Condominium Property Act, the board may close any portion of a noticed meeting, or meet separately from a noticed meeting, to, among other topics, consult with the association's legal counsel. This would permit the board to "consult" with counsel via email. To "consult" generally means something like seeking information or advice from legal counsel.

So, merely "c.c.ing" counsel on communications between board members, where the board is not seeking any information or advice from counsel, is not likely going to cloak a communication as one that can take place outside of a board meeting. However, if board members are engaging in an email dialogue with counsel wherein information or legal advice is being discussed, that would be a legitimate exception to the requirement that discussions concerning association issues involving a quorum of the board must take place at an open 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.