Are hearings for rules violations public?

Q. The board of our condominium association conducts rules violation hearings in an open session of board meetings. This permits all owners to attend and watch the hearing. I thought these rules violation hearings are supposed to be closed to owners. What is correct?

A. This issue is governed by Section 18(a)(9)(A) of the Illinois Condominium Property Act. In general, meetings of the board are open to any unit owner. However, the law provides that the board "may" close any portion of a noticed meeting, or meet separately from a noticed meeting, to discuss six specified topics. Notice that this section says "may," and it does not say "shall," close the meeting to owners.

As such, it is within the board's discretion to discuss the six specified topics in an open or closed board meeting, or separately from a board meeting. The six topics include discussions of violations of rules and regulations of the association. So, while an overwhelming majority of associations conduct rules violation hearings in a portion of a board meeting closed to unit owners, or separately from a noticed meeting, these hearings could be conducted in a board meeting that is open to all owners.

Note too that Section 1-40(b)(4) of the Illinois Common Interest Community Association Act includes the same language, so this discussion is also applicable to homeowners associations governed by that law.

Q. One of the candidates for the board of our condominium association is involved in a lawsuit against the association. Does this disqualify this person from running for the board?

A. Under the Condominium Property Act, the only legal qualification to be a board member in Illinois is to be a unit owner. The candidate's participation in a suit against the association would not disqualify this person, as a matter of law, from running for or from serving on the board. Of course, if this person is elected to the board, this person should not be present during any closed session discussion related to the litigation in question, and should abstain from any discussion or vote regarding the suit.

Notably, the details of the suit (which are public record) may be of interest to unit owners, in general, in making their decision whether or not to vote for this candidate.

Q. Who exactly does the attorney for an association represent?

A. In general, the association attorney's client is the association (as an entity), acting through its board of directors.

Counsel for the association does not generally represent any individual board member or a faction of the board, or the unit owners, or the managing agent.

Many unit owners incorrectly think counsel for the association represents the owners. That is not correct. There are many issues and circumstances where the interests of the association and the interests of the unit owners are adverse. As such, it would be a conflict of interest for the association's counsel to represent individual owners.

Q. The declaration for our association permits owners to vote by proxy. However, the language goes on to state that no voting member may cast a proxy vote for more than three owners. It is very difficult to get owners to attend the annual meeting of the association in person, and most attend by proxy. Is this limit enforceable?

A. The restriction is enforceable. Unless the association's articles of incorporation or bylaws provide otherwise, owners can generally vote by proxy. The articles of incorporation or bylaws can prohibit voting by proxy. Therefore, these documents could logically restrict the number of proxies that a voting member may cast on behalf of other owners.

Given the difficulty in having owners physically attend the annual meeting, the association can consider amending the declaration to modify the restriction on the proxies, or adopt some other voting method, like electronic voting.

• 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.