Private sessions of the board allowed in specific instances
Q: Our board has received conflicting information about what matters it can discuss in private in an "executive session." Can you explain what matters can be addressed in an "executive session?"
A: In general, meetings of a quorum of an association's board must be open to any unit owner. Owners have to be permitted to attend board meetings. There are nonetheless numerous exceptions that permit portions of a board meeting to be held in private, outside the presence of unit owners.
This portion of a board meeting is commonly and informally referred to as an "executive session" or a "closed session," as the governing statutes don't use these terms.
Portions of a board meeting that can be closed to unit owners and conducted in executive session are:
• To discuss litigation when an action against or on behalf of the particular association has been filed and pending in a court or administrative tribunal, or when the board of managers finds that such an action is probable or imminent.
• To discuss the appointment, employment, engagement or dismissal of an employee, independent contractor, agent or other provider of goods and services.
• To interview a potential employee, independent contractor, agent or other provider of goods and services.
• To discuss violations of rules and regulations of the association.
• To discuss a unit owner's unpaid share of common expenses.
• To consult with the association's legal counsel.
However, and this is often overlooked, any actual vote on matters discussed in executive session must be taken at a meeting, or portion of a meeting, open to any unit owner.
Note also that any matter that can be discussed by a board in an executive session of a board meeting, also may be discussed in a gathering of the board that is separate from any board meeting. This should make it easier for a board to gather to discuss these matters.
This is all applicable to both Illinois condominiums and common interest community associations.
Q: Does our Illinois condominium have to give notice when the board will be gathering to discuss a matter permitted to be discussed in a closed session, even when no vote will be taken?
A: The Condominium Property Act permits the board to meet separately from a board meeting, and without notice, to discuss an item that may be discussed in a portion of a board meeting permitted to be closed to unit owners.
However, if this closed session will be part of a board meeting, notice of the board meeting would have to be provided as required by the association's governing documents and statute.
Keep in mind that decisions cannot be made in these gatherings, as any formal vote of the board needs to be taken at a board meeting open to owners.
Q: I live in Florida most of the year, and I am the sole owner of a condominium unit in Illinois. My son lives in this condominium while he is in school. Can I give my son a power of attorney that permits him to serve on the condominium board?
A: Board members are elected from among unit owners. Because your son is not a unit owner, he may not serve on the board of your Illinois condominium association. A power of attorney may grant your son certain rights to act on your behalf concerning your Illinois real estate. This might, like a proxy, include permitting your son to vote on your behalf at meetings of the owners. However, a power of attorney does not grant an ownership interest in your unit to your son, and would not permit him to serve 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.