“Does Sunshine Law Apply to Smaller Boards?” – Naples Daily News

“Does Sunshine Law Apply to Smaller Boards?” – Naples Daily News

Q: Please explain the “sunshine law” as it pertains to a three-member condominium board as compared to a five-member board. It seems that two directors discussing association business on a five-member board does not constitute a quorum, whereas two directors on a three-member board would. It seems that a smaller, three-member board is punished since two directors cannot discuss association business outside of a noticed board meeting? (D.N.)

A: The Florida “sunshine law” applies only to certain governmental entities and agencies. It is found in Chapter 286 of the Florida Statutes, and with few exceptions, generally prohibits any two members of a covered board or commission from meeting outside of a noticed and public meeting.

The notice and open meeting requirements that apply to community associations are found in specific statutory provisions of the Florida Homeowners’ Association Act, the Florida Condominium Act, and the Florida Cooperative Act. Many attorneys, managers, and board members use the term “sunshine laws” when referring to these provisions, but really in a more colloquial or “industry slang” manner of speaking.

Section 718.112(2)(c) of the Florida Condominium Act contains all of the “sunshine law” provisions regulating notice and meetings for condominium associations. You must also check the governing documents of your condominium association because they may contain additional requirements that must be met as well.

Unlike the Florida “sunshine law” which applies to governmental entities, association board members who constitute less than a quorum may meet at any time and discuss association business. Obviously, without a quorum, formal decisions cannot be made. This legal obligation is especially problematic for three-member boards, as highlighted by your question, because only two directors discussing association business will result in a quorum. Unfortunately, the law makes no exception for three-member boards on this issue. The most practical way to try to solve this problem is to seek to amend the bylaws to expand the number of directors from three to five or more. Until such an amendment to the bylaws is adopted by the association, any time two of the directors on a three-member board discuss association business a quorum is achieved, which means that a board meeting is occurring which must be noticed.

Q: The manager of my condominium association informed me that each of the seven directors serves a staggered, three-year term. Is that legal? I thought that Florida condominium law only allowed for a two-year term maximum. (T.U.)

A: It is legal if three-year director terms are authorized by the condominium documents. In 2008, Section 718.112(2)(d)1 of the Florida Condominium Act was amended to provide that “in the event the bylaws permit staggered terms of no more than 2 years and upon approval of a majority of the total voting interests, the association board members may serve 2-year staggered terms.” This language, however, was later amended (again) and the current version of the Florida Condominium Act does not impose a maximum two-year term for directors.

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David G. Muller is a Board-Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A. in Naples. Send questions by e-mail to dmuller@beckerlawyers.com.