“The Power to Mute” – FCAP Managers Report

There are countless reasons that your community association may benefit from providing remote access to meetings of its members or that of its board of directors. In fact, the availability of remote access alone tends to lead to, at the very least, a positive feeling of increased transparency among the community, due to the ease in which the ongoings of the association can be broadcast and discussed. For the same reason, remote access may also benefit communities that often struggle to obtain the participation of members that only reside in the community part time.

But there is yet another reason remote access benefits your community association – it enables those in charge of the meeting to mute participants in order to control the presentation and flow of meetings. After all, as most of you have likely witnessed at one point or another, despite the best of efforts, community association meetings can often devolve into multiple conversations, some of which concern matters that were never even intended as the subject of the meeting in the first place. And, as most of you have also likely witnessed at one point or another, meetings can sometimes be derailed by particular members who believe that they are entitled to air their grievances as long as they wish, regardless of the meeting agenda, rules regarding owner participation at meetings, or even common decorum.

With that said, community associations should always consult counsel in establishing written procedures and best practices in utilizing the power to mute, as the power to mute is not without its limits.

The primary statutes that govern community associations, Chapters 718, 719, and 720 of Florida Statutes, all expressly provide, in one form or another, that association members attending either a meeting of members or that of its board of directors are entitled “to speak” as to “all designated agenda items”, while also providing that that the association may adopt written “reasonable rules” governing participation.

For example, Fla. Stat. § 718.112(2)(c), governing Board meetings of condominium associations, provides in pertinent part as follows:

• (c) Board of administration meetings.—In a residential condominium association of more than 10 units, the board of administration shall meet at least once each quarter. At least four times each year, the meeting agenda must include an opportunity for members to ask questions of the board. Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items and the right to ask questions relating to reports on the status of construction or repair projects, the status of revenues and expenditures during the current fiscal year, and other issues affecting the condominium. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.

Likewise, Fla. Stat. § 718.112(2)(d), governing member meetings of condominium associations, provides in pertinent part as follows:

• 7. Unit owners have the right to participate in meetings of unit owners with reference to all designated agenda items. However, the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation.

Furthermore, Chapter 617 of Florida Statutes, governing corporations not for profit, which includes all types of community associations – condominiums, cooperatives, and homeowners’ associations – also limits the power to mute by making clear that members attending member meetings remotely must be provided a “reasonable opportunity to participate in the meeting”, which includes “an opportunity to communicate and to read or hear the proceedings of the meeting substantial concurrent with the proceedings.” Specifically, Fla. Stat. § 617.0721(3) provides as follows:

• (3) If authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may adopt, members and proxy holders who are not physically present at a meeting may, by means of remote communication:
• (a) Participate in the meeting.
• (b) Be deemed to be present in person and vote at the meeting if:
• 1. The corporation implements reasonable means to verify that each person deemed present and authorized to vote by means of remote communication is a member or proxy holder; and
• 2. The corporation implements reasonable measures to provide such members or proxy holders with a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to communicate and to read or hear the proceedings of the meeting substantially concurrent with the proceedings.

If any member or proxy holder votes or takes other action by means of remote communication, a record of that member’s participation in the meeting must be maintained by the corporation in accordance with s. 617.1601.

Another limitation to consider is the fact that community associations are not authorized under Florida law, absent a few narrow exceptions, to hold “remote only” meetings. In fact, as a rule of thumb, community associations should always provide a physical location for meetings so that those individuals who are unable to attend meetings remotely, or otherwise wish to attend in person, can do so, as Florida law is clear that, in most cases, meetings must be open to all members.

Lastly, because community associations are also governed by their respective Governing Documents, community associations must be aware that their Governing Documents may also further define, or even prohibit, remote participation in meetings. In fact, Governing Documents may even contradict the foregoing statutes, which means you will need to consult an attorney to understand how to best address that issue.

Ultimately, this article is not intended to serve as an exhaustive list of issues your community association may deal with in utilizing the power to mute. Rather, this article is intended to emphasize that you should always consult your legal counsel early and often when it comes to the issue, as it can be nuanced to navigate and costly to address if done so without proper planning and analysis.

To read the original FCAP article, please click here.

Nicolas M. Jimenez is a Community Association attorney in the Miami office. Mr. Jimenez has experience representing clients in Florida state and federal courts and has a diverse range of subject matters, including matters relating to contractual disputes, non-compete litigation, intracorporate disputes, landlord-tenant disputes, employment disputes, class actions, and condominium related litigation.