The difference between commissions and committees in HOAs

Q. Our HOA board of directors recently set up a commission for unit owners to review and participate in revising the budget process. Should all potential owner/volunteers be required to submit an application for the commission and should the Board, not the commission chair, determine who will serve on the committee based on the applications?

A. First — a legal technicality. Your question references two different types of legal entities common in community association administration: commissions vs. committees. Committees and commissions have separate duties and functions. Many associations establish what are actually “commissions,” and call them “committees” in error. The improper delegation of board authority to a committee or commission can undermine the legality of actions 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 or commission.

The board may only establish committees if they are expressly provided for in an association's articles of incorporation, declaration or bylaws. A committee may exercise the authority of the board regarding association administration. A committee may further act on behalf of the association and bind it to any action. Action taken by the requisite majority of a committee is as effective as action taken by the board itself. Committees can potentially wield a tremendous amount of power and responsibility within a community association.

With regard to commissions, on the other hand, the board of a condominium or HOA may appoint commissions, without express provision in the articles of incorporation, declaration or bylaws. A commission is only an advisory body to the board. A commission may not act on behalf of the Association or bind it to any action. It may only make recommendations to the board.

Typically, the board appoints the members to a commission. Commission members do not have to be board members and may not even have to be unit owners. That said, members of commissions are usually unit owners and frequently have at least one board member (but, again, that is not required). The board appoints the chairperson of the commission. The chairperson of a commission does not have to be a board member.

With respect to commission appointments, the board can seek recommendations from the chairperson of the commission, or the board can solicit interest from the owners at large. We generally suggest that a majority of the board establish a written policy that governs the purpose, function, and duties of each commission, how members and the chair are selected, the number of commission members, and other operational details. That way, the board and/or commission chairperson are required to follow that policy unless changed by a majority of the Board.

If the association board has not formally adopted such a policy, then there is no legally required protocol for reviewing and approving potential appointments to a commission other than board approval. The board must simply act in the best interests of the association as a whole.

Q. The majority of our condominium board does not want to offer or acknowledge any proxies for an upcoming vote at a special meeting of the owners. Can the board simply take the right to vote by proxy away from the owners?

A. No. Pursuant to Section 107.50 of the Illinois not-for-profit Corporation act, a condominium association board must provide and/or accept valid proxies submitted by owners for any membership vote. The Illinois Condominium Property Act provides a process for eliminating proxies through the board adopting mail in balloting. However, if the board has not adopted mail-in balloting, they cannot unilaterally negate an owner's right to vote via proxy.

• 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.