Closed session not allowed for officer selection
Q. Following our recent annual meeting, the new board members met in private or closed session, and determined who would serve in each officer position. Was this appropriate?
A. No. This is a common misconception and practice of many community association boards. While it is understandable that board members would like to confidentially discuss either their desire or special qualifications to serve in a certain officer position, the law is very clear on this issue: the discussion and election of the president, secretary, treasurer and vice president (having a vice president is rare, but may be required by the governing documents) must be conducted by the board at a board meeting open to all of the owners.
That said, the mere fact that a board may have conducted officer selections in closed or private session does not automatically negate prior board decisions. However, once the board becomes aware of this required process, they should ratify their prior officer selection decisions at an open meeting and ensure it is done properly after each annual election meeting in the future.
Q. The president of our homeowners’ association never votes on issues that come before the board, unless there is a “tie” vote. When asked about this, the president responds, “it’s the law.” Is it?
A. No, it is not the law. The board president withholding their vote other than in the event of a tie is a concept stemming from the old, formal Robert’s Rules of Order — which are not generally applicable to community association board meetings. The fact is that following (the very complicated and burdensome) Robert’s Rules of Order would waste a significant amount of board time just trying to learn the complexities of the manual. Fortunately, community association boards are only required to follow basic parliamentary procedure (much easier to understand and practical to follow — initial motion, seconding of the motion, board member discussion and then vote). The board president, like every other member of the board, has an equal vote and should exercise their right to vote.
Q: A couple of board members have been tasked with updating the association’s rules. Can you describe some “best practices” we should employ in this undertaking?
A: Here are some best practices in connection with revising the association’s rules when the board, or a group of board members, is reviewing the existing rules.
The board should consider what rules have not been relevant and enforced and remove them from the rules. Similarly, the board should consider what issues the association has faced that are not addressed in the rules. Appropriate rules should be considered to address those issues.
Many associations use another association’s set of rules as a guide for preparing their own rules. If another association’s rules address an issue facing the association, then by all means the board should consider including the rule. However, the board should avoid simply adopting rules from another association merely because they are “interesting.”
The association’s declaration should be reviewed to make sure the rules are not at odds with the declaration. Keep in mind that the rules cannot contradict restrictions in the declaration. That would require an amendment to the declaration. Avoid rules that simply repeat, or paraphrase, existing language in the declaration. That isn't necessary and just creates another lengthy document. It would be a good idea to include a general statement in the rules that incorporate all of the restrictions in the declaration by reference. The rules are supposed to be “self-enforcing.” If the rules are too lengthy, residents won’t take the time to become familiar with them. Also, many associations intersperse “informational items” in the rules. That can create confusion. Housekeeping items should be separate from the rules, although they can all be included in what many refer to as an “owner’s handbook.”
• Matthew Moodhe 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.