What a board can discuss privately

Posted4/28/2018 6:00 AM

Q. I'm still confused about what the board of our condominium association can discuss "behind closed doors" and without owners in attendance. Can you publish a reminder?

A. Section 1-40(b)(5) of the Common Interest Community Association Act and Section 18(a)(9)(A) of the Condominium Property Act were amended, effective Jan. 1, 2017, to provide that the board may close any portion of a meeting for which notice was given, or meet separately from a board meeting to 1) discuss probable or pending litigation; 2) discuss third-party contracts or information regarding appointment, employment, engagement or dismissal of an employee, independent contractor, agent or other provider of goods and services; 3) interview a potential employee, independent contractor, agent or other provider of goods and services; 4) discuss violations of the rules and regulations of the association; 5) discuss a member's or unit owner's unpaid share of common expenses; or 6) consult with the association's legal counsel.

It's important to note that these sections now permit the board to meet separately from a board meeting to discuss these limited matters, and it is not required to discuss them in a "closed" portion (also known as "executive session") of an actual board meeting. This change permits limited use of workshops, held without notice and without owners in attendance, to discuss issues that can also be discussed in "executive session" of a board meeting. This is a limited legislative response to the Palm decision.

Notably, these amendments provide that, in addition to discussion of employment matters in the closed portion of a meeting, the board may also discuss the engagement of any independent contractor, agent or other provider of goods and services, or interview a potential employee, independent contractor, agent or other provider of goods and services. This codifies and expands on case law.

These sections also add that the board may consult with an attorney during the closed portion of a noticed meeting, or a meeting separate from a noticed meeting. This is really nothing more than codification of existing law.

An argument can be made that board members can discuss by email those matters they are now expressly permitted to discuss outside of a board meeting. However, one of the benefits of being able to meet in "closed session," either as part of a board meeting or another gathering of the board now permitted, is to avoid creating a record of the discussion. Emailing creates a record of that discussion that might be discoverable in litigation. I could not suggest taking that risk. It's much more prudent to meet in person or by a phone conference instead.

Q. What is the proper notice to be given for a condominium board meeting?

A. Notice of board meetings is governed by Section 18(a)(9)(E) of the Illinois Condominium Property Act. That section provides that notice of every meeting of the board of managers shall be posted in entranceways, elevators or other conspicuous places in the condominium at least 48 hours prior to the board meeting. Where there is no common entranceway for seven or more units, the board may designate one or more locations in the proximity of these units where the notices of meetings shall be posted.

Further, notice of every meeting of the board must be given at least 48 hours prior to the meeting, or such longer notice as the law may separately require, to: 1) each unit owner who has provided the association with written authorization to conduct business by acceptable technological means (email); and 2) to the extent that the condominium instruments of an association require, to each other unit owner by mail or delivery.

• 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.

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