Board member challenging association may not consult with its attorney
Q. A board member in our association is challenging a decision made by the board concerning the types of replacement windows owners must install for their units. This board member, who needs to replace the windows of his unit, is threatening litigation, and wants to obtain legal advice on the issue from the association's attorney. Can the board bar this board member from consulting with the association's counsel, and from attending an executive session convened, to discuss this matter?
A. The reality of the situation is that the board member here is acting as an adversarial owner, and not as a board member. A board member who is in a dispute with the association, and who is threatening litigation against the association, is neither entitled to consult with the association's attorney on the matter nor attend an executive session where the dispute will be discussed by the board.
Q. If it weren't for proxies, our association would never be able to establish a quorum for owner meetings like the annual meeting. Can an owner, in a proxy, limit the matters on which the proxy holder can vote?
A. In general, an owner can limit the matters on which the holder of the proxy can vote at the meeting for which the proxy is given. The proxy can also instruct the proxy holder how to vote on all or any specified issues to be addressed at the meeting. Similarly, the proxy can give the proxy holder discretion as to how to vote on all or any specified issues.
Q. The annual meeting for our association is coming up shortly. I don't know enough about the candidates for the board, so I do not want to participate in the voting. However, I do want to make sure there is a quorum of owners present. Can I give a proxy to another owner for the sole purpose of being counted toward a quorum, but that does not permit the proxy holder to vote?
A. Yes, you can. That said, I encourage all owners to participate in the election for board members, as the board members are the caretakers of your property. Most associations distribute materials from candidates, or hold candidate forums, prior to the election. These are good opportunities for owners to acquaint themselves with the qualifications of the candidates. And the candidates should otherwise be available to answer questions owners may have.
Q. Is there a limit on the number of people who can serve on a commission established by the board of an association?
A. The law does not impose a minimum or maximum number of people who can serve on a commission. I tend to like smaller groups (three or five), as a larger group can be difficult to accommodate in terms of schedules. The board needs to establish the commission and make appointments to the commission at a board meeting.
Q. When should the new members of the board meet to decide who will serve in each officer position?
A. The election of the officers, the president, secretary and treasurer, must be conducted by the board at a duly called and held board meeting or portion thereof open to all of the owners of the association. Some associations will schedule a board meeting for this purpose to commence immediately upon the conclusion of the annual meeting of the association. Other associations will let some time pass before scheduling that meeting. But in any event, the election of the officers should take place relatively soon after the annual meeting.
• 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.