Condo talk: Use of committees and commissions

The work of an association’s board of managers, even if the association is professionally managed, can be extremely time-consuming. And let’s face it, as a volunteer, most board members are only going to devote so much of their lives to the mostly thankless position.

So, what can a board of directors do to leverage their time commitment?

The answer may be to delegate some of its functions. The proper delegation of functions can be an efficient management tool for the board of directors. It can also serve to groom successors.

One of the methods used to delegate a board’s function is the appointment of committees and commissions. Indeed, many associations use committees and commissions of both board and nonboard members. It has to be noted that committees and commissions are legally distinguishable and have significantly very different functions and power.

Many, many boards establish committees that are really commissions, but more on the legal distinction later.

The general not-for-profit corporation act, applicable to incorporated associations as well as all condominium associations whether or not incorporated, governs the use of committees and commissions.

Importantly, 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. Without such specific authority, both board and committee members would be acting at their own personal risk in undertaking activity that only a legally established committee can conduct. The improper delegation of board authority to a committee can undermine the propriety of the action taken by that group, can jeopardize coverage under the association’s directors and officer’s liability insurance, and could result in liability to the association, board and persons serving on that committee.

On the other hand, the board may appoint commissions, without any express authority in the association’s governing documents.

Let’s focus on committees. A majority of the board can create committees and appoint members. Every committee must contain two or more members of the association’s board. A majority of the members of the committee must be members of the association’s board. Members of a committee serve at the pleasure of the board and may be removed at any time by the board, with or without cause. However, committees relating to the election, nomination, qualification or credentials of directors or other committees involved in the process of electing directors can be composed entirely of non-board members.

The appointment or dissolution of any committee should be made in a resolution of the board, adopted at a board meeting. To the extent that Robert’s Rules of Order have been adopted by the board, those rules should be consulted with respect to the appointment of a committee chairman and the procedures to be followed by a committee.

Action by a committee can only be taken at a meeting, with a majority of committee members present and voting. Unless the association’s board establishes a greater number, a majority of the committee members constitute a quorum.

Subject to the provisions of the association’s bylaws, or action by the board, a committee, by majority vote of its members, determines the time and place of meetings and the required notice for meetings. With respect to condominium associations, the requirements of the Condominium Property Act may be applicable and control the committee’s notice obligations. The Condominium Property Act defines meetings of the board as any gathering of a quorum of the members of the board held for the purpose of conducting board business. Accordingly, if a quorum of the board is also present at a committee meeting, notice of that committee meeting must comply with the notice of board meeting requirements.

Committees are often responsible for carrying out important board functions, such as the establishment and enforcement of rules and regulations, review of requests for approval under architectural guidelines, and overseeing the nominating process for the annual meeting. However, their authority can be much, much greater than that.

Next week, I will address the specific authority of committees and commissions, how to establish commissions, and what an association can do to revise its governing documents if they do not authorize committees.

Ÿ 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.