Do We Have to Make All Board Meetings Open to the Members of the Association?
Three of the most frequently asked questions by boards of condominiums and common interest communities are: (1) do all the unit owners get invited to every board meeting; (2) what constitutes an actual board meeting; and (3) can the board discuss items outside a formal board meeting setting. In this article, it is our goal to answer all three of those questions.
The Open Meetings Act and the Freedom of Information Act
Initially, many condominium and common interest community board members may believe that their meetings are subject to Illinois’ Open Meetings Act or that the documentation regarding the board meetings are subject to being produced under Illinois’ Freedom of Information Act. However, neither act applies to an Illinois condominium or common interest community as discussed below.
The Open Meetings Act (5 ILCS 120/1, et. seq.) applies only to meetings of “public bodies,” which is defined as legislative, executive, administrative or advisory bodies of the State of Illinois, counties, townships, cities, villages, incorporated towns, school districts and other municipal entities, including commissions. Under the Open Meetings Act, all meetings must be open to the public with limited exceptions for items such as employee issues or discussions about real estate to be purchased or leased by the municipal entity. Because condominiums and common interest communities are not “public bodies” as defined by the Open Meetings Act, the act does not apply.
Similarly, Illinois does have a Freedom of Information Act at 5 ILCS 140/1, et. seq. Under Illinois’ Freedom of Information Act, “public bodies” (which term has a similar definition to the Open Meetings Act) have a duty to maintain certain records and documents and make them available to the public upon request. However, once again, because condominiums and common interest communities are not public bodies as defined by the Freedom of Information Act, the provisions of that act do not apply, either.
Does an Illinois Common Interest Association Need to Make all Board Meetings Open to the Unit Owners?
Although the Open Meetings Act does not apply to condominium and common interest communities, board meetings must be open to the other unit owners under Section 18(a)(9)(A) of the Condominium Property Act and Section 1-40(b)(5) of the Common Interest Community Association Act. Further, there must be at least 4 meetings per year in Illinois and notice must be provided to all the unit owners at least 48 hours before the meeting by posting notices in conspicuous places throughout the association as well as by personal delivery or mail (unless the unit owner has agreed to accept notices by electronic means). Although unit owners have a right to get notice of board meetings, unit owners within condominiums do not have an absolute right to comment at board meetings, but owners within common interest communities do have that right. Regardless, most condominium boards also set aside a portion of the meeting for limited unit owner comments.
There are exceptions to the rule that every board meeting must be open to the public, however. Under Section 18(a)(9)(A) of the Condominium Property Act, condominium board meetings (or portions of those meetings) where certain items are discussed can be done in a closed session. More specifically, under that section, a condominium board can meet and discuss items outside the presence of non-board members to:
- discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the board of managers finds that such an action is probable or imminent;
- discuss the appointment, employment, engagement, or dismissal of an employee, independent contractor, agent, or other provider of goods and services;
- interview a potential employee, independent contractor, agent, or other provider of goods and services;
- discuss violations of rules and regulations of the association;
- discuss a unit owner’s unpaid share of common expenses; or
- consult with the association’s legal counsel.
A similar provision for exceptions to open board meetings is also included in Section 1-40(b)((5) of Illinois’ Common Interest Community Association Act. Board members can also meet to discuss these six items separate from any formal board meetings and those discussions can also be done electronically or telephonically. This ability to conduct business in a closed session, or by other means other than a formal meeting, is relatively new in Illinois. After the appellate court ruled in Palm v. 2800 Lake Shore Drive Condo. Ass’n, 2014 IL App (1st) 111290, ¶ 9, 10 N.E.3d 307, 313 that a condominium board could not discuss condominium items in private gatherings, emails or phone calls, both the Condominium Property Act and Common Interest Community Association Act were amended in 2017 to allow for private discussions or meetings without notice given to unit owners at the same time the list of exceptions to the rule for open meetings was expanded from three to six.
It is important to remember that the board for an Illinois condominium or common interest community must keep minutes of all meetings, even if those meetings are closed to the unit owners. Although those meeting minutes may not be kept with the same level of detail as those that are open to the unit owners, they should still provide enough information about the attendees, the topics ,and the location, date, and time of the meeting, to allow for a record of that meeting to be able to be kept and referred to if necessary. Finally, under both the Condominium Property Act and the Common Interest Community Association Act, all meeting minutes must be kept for a minimum of seven years.
As stated above, the Open Meetings and Freedom of Information Acts do not apply to condominium and common interest community associations in Illinois. However, the general rules regarding the openness of board meetings are:
- Boards of both condominiums and common interest community associations must meet at least 4 times a year, and that number may be increased by the operative documents;
- Board meetings must be open to the unit owners, unless one of the six exceptions to an open meeting apply;
- If the board is discussing one or more of those six exceptions only, the “meeting” can be informal and done without notice or at a closed session at a formal meeting;
- The board must send out notice to the unit owners of any open meeting at least 48 hours before the meeting;
- In common interest community associations, the unit owners have an absolute right to comment at board meetings, and in condominiums, although there is no absolute right for unit owners to be able to comment, most condominium associations set aside a time for unit owner comment at the board meetings; and
- The board must keep minutes of all meetings, including closed meetings, for at least 7 years.
If you have specific questions about how to conduct a board meeting in an Illinois association, retention of experienced counsel is suggested for multiple reasons, including that a board vote that is conducted at an improper meeting may not be upheld.
The attorneys of Hirzel Law, PLC focus their practice on condominium and homeowners association law in addition to real estate law. Our attorneys have extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. We stand by our clients, offering quality legal representation and promptly responding to our clients’ needs. Contact Hirzel Law online or call 312-552-7669 to learn how our Illinois attorneys can help.