Can a board meet without owners present?
Q: I found an old column of yours from 2013 that says the board of a condominium can hold "workshops" without owners present as long as no vote is taken. Is that still the case?
A: Mentioned here on numerous occasions, the Illinois appellate court, in a case known as Palm II, held that a quorum of the board may generally not meet in what are commonly referred to as workshops that are closed to the owners. "Workshops" were often used as planning sessions for boards of associations, but where no decisions were actually made.
The court stated that a gathering of a quorum of the board to conduct board business is a board meeting, and must generally be open to owners. Whether or not decisions are made at these gatherings does not determine whether it is a board meeting. This decision put an end to this common practice.
The Illinois legislature has responded to this decision by expanding the purposes for which the board can meet in a closed session of a board meeting under Section 18(a)(9)(A) of the Condominium Property Act. That section now also provides that a board can gather separate from a board meeting, and without notice, to discuss these matters as well. No decisions can be made at these closed sessions or gatherings separate from a board meeting, and decisions (votes) of the board must still be made at a portion of a board meeting that is open to unit owners.
Here is the list of topics the board can legally discuss in a closed session, or at a gathering separate from a noticed meeting:
• Litigation, when a case against or on behalf of the association has been filed and is pending in a court or administrative tribunal, or when the board finds that such an action is probable or imminent.
• 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.
• Violations of rules and regulations of the association.
• A unit owner's unpaid share of common expenses.
• To consult with the association's legal counsel.
Q: I think that what is going on in the world is getting to one of our board members. We have been conducting board meetings via video conference, and owners can attend. One of the board members, who is on furlough from his job due to the COVID-19 pandemic, appears to be under great stress. He belittles and verbally attacks other board members in front of the unit owners when another board member does not agree with him on a vote. How should the board handle this?
A: Spirited debate among board members about an issue before a board vote is valuable. It can cause board members to consider all points of view on an issue. However, once a decision is made, the board needs to remain unified, particularly on controversial issues. It is important for all board members to support properly adopted decisions of the board, even if a board member does not agree with it. Handled another way by members of the board, the board will appear unprofessional and will quickly loose the confidence and support of the owners.
The board should meet with this board member to address its concerns; maybe this board member doesn't even realize what he or she is doing. If the conduct continues, the board should consider asking this board member to resign, or take steps to remove this person from 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.