Issues generally arise in community associations when there is or appears to be a lack of transparency between the board of directors and the association members. The Florida’s Sunshine in the Government Act, or the “sunshine laws,” require transparency and disclosure in government and business. Although the Florida’s Sunshine in the Government Act does not apply to community associations, the Florida Condominium Act (Chapter 718 of the Florida Statutes), the Florida Homeowners’ Association (Chapter 720), and the Florida Cooperative Act (Chapter 719) contain their own set of “sunshine” requirements for boards of community associations. Transparency is the key to following the sunshine laws.
First, boards need to determine which meetings must to be open to association members. While boards may desire to avoid certain topics in open meetings, the Acts referenced above require board meetings to be open to members and owners have a right to be informed. The Homeowners’ Association Act defines a meeting of the board as “whenever a quorum of the board gathers to conduct association business.” First, a quorum of the board must be present. For example, a discussion between two directors of a five-member board would not constitute a meeting of the board. The meaning of “conducting” business is trickier. Some boards may desire to meet for planning or agenda development, but the sunshine laws do not require a binding vote to be taken for a meeting to qualify as conducting association business. The board should consider that any gathering of a quorum of the board where the development of ideas takes place constitutes a meeting. The Condominium Act and the Cooperative Act state that meetings of the board of administration at which a quorum of the members is present shall be open to all unit owners.
There are two statutory exceptions to the requirement that board meetings must be open. First, meetings with the association’s attorney to discuss proposed or pending litigation, or if the meeting is held for the purpose of seeking or rendering legal advice, may be closed. Second is when “personnel matters” are under discussion. Personnel matters should be limited to discussions of specific issues pertaining to association employees. So can individual board members meet or call one another to discuss association business as long as the meeting or phone call comprise less than a quorum of the board? Yes. However, remote meetings of a quorum of the board still constitute meetings that must be open to members.
The second important “sunshine” requirement is the noticing of meetings. The requirement that meetings be open to members is of little benefit if owners do not know when or where the meetings are taking place. Notice of all board meetings must be posted conspicuously on the community property for at least forty-eight (48) hours before the meeting. However, certain meetings, such as meetings where non-emergency special assessments or amendments to rules regarding unit or parcel use are considered, require notices to be mailed, delivered, or electronically transmitted to the unit owners AND posted conspicuously on the condominium property not less than fourteen (14) days prior to the meeting. The notices also need to clearly identify the agenda items that will be discussed at the meeting.
The “sunshine” laws also give owners certain rights at board meetings. Owners have a right to speak at all open board meetings on all designated agenda items. The right to speak does not mean that every unit owner is entitled to endlessly debate motions, but it does mean that the owners are entitled to be heard regarding matters the board intends to consider at the meeting. Thus, unit owner statements should be taken either at the beginning of the meeting, or at a set time in connection with a specific agenda item. Allowing owners to speak after the board has voted on the agenda item defeats the owners’ rights to participate. The association may adopt written reasonable rules governing the frequency, duration and manner of unit owner statements. Owners may also record or videotape such meetings.
What about committees? The sunshine laws also apply to committees that are empowered to take final action on behalf of the board, or committees that make recommendations to the board regarding the association budget. Under the Condominium and Cooperative Acts, all committees are subject to sunshine requirements unless the association bylaws specifically exempt committees from the sunshine laws. As such, members have a right to attend, speak and tape or video record at the meetings of the committees which fall in this category of what we call “statutory committees.”
Compliance with the “sunshine” laws is an important part of ensuring the association runs smoothly. When the board is transparent and members are well informed regarding association business, the board reduces the chances that discord will ensue between the board and the association members.
To read the original FCAP article, please click here.
Karyan San Martano is a member of Becker’s Community Association practice and regularly provides legal counseling to the officers and directors, as well as the property manager, on the operation of condominiums, cooperatives, and homeowners associations.