We are often asked whether Condominium and Homeowners Associations are subject to the 'Sunshine Act', referring to the open meeting laws that apply to governmental agencies. While the answer to the above question is no, associations must comply with the special open meeting requirement that are found in Chapters 718 and 720 paraphrased as follows:
A meeting of the board of directors occurs whenever a quorum of the board gathers to conduct association business. All unit owners have the right to attend and, with condominiums, the right to participate in those meetings.
To better understand this concept, we will break it down:
1. A Quorum of Board Members:
The vast majority of association documents provide that a majority of the total number of directors constitutes a quorum. For instance, a quorum for a three (3) member board would be two (2) members and a quorum for a five (5) member board would be three (3) members.
Webster’s Third New International Dictionary defines the word 'gather' as follows:
1a: to bring together into a crowd, group, body, or mass: ....
3. To Conduct:
Webster’s Third New International Dictionary defines the word 'conduct' as follows:
2a: the act, manner, or process of carrying out (as a task) or carrying forward (as a business, government or war):...
We will address this part of the concept more fully below.
4. Association Business:
In this context, the word 'business' refers to the affairs of the association.
Accordingly, from the above, we can loosely redefine the open meeting concept as follows:
If at least a majority of the members of a board come together as a group and carry out or carry forward the affairs of the Association, it is a board meeting that should be posted and open to the membership.
WHEN ARE BOARD MEMBERS CONDUCTING ASSOCIATION BUSINESS
As can still be seen, the words 'to conduct' are the most critical words to this concept because it is this action that turns a gathering of board members into a board meeting.
It seems clear from the above definitions and from the public policy gleaned from Chapters 718 and 720 that the legislature intended that the phase 'to conduct' is to be given a liberal interpretation not be limited to making motions and casting votes. Accordingly, it is our opinion that you are conducting Association Business when you take any substantive act which carries out or carries forward the affairs of the Association. By way of example:
If a majority of the board met at the community pool and discussed the weather, it would be a gathering but would not be a board meeting.
On the other hand, if that same majority group of directors discussed the landscaping company in any substantive way (e.g. a discussion of whether it is performing its duties consistently with the contract), the gathering would, in our view, become a board meeting.
There is no bright line between a gathering and a meeting. However, based on the legislative policy dictating open meetings, we always recommend that board members err on the side of caution.
APPLICABILITY TO COMMITTEES:
As a final note, the following committees are also required to comply with the above requirements:
a. Executive Committees;
b. Committees which make recommendations to the board regarding the association budget; and
c. All other committees unless there are exempted from this requirement by the Association’s By-Laws.
a. Executive Committees;
b. Committees which can make final decisions regarding the expenditure of association funds; and
c. Committees vested with the power to approve or disapprove architectural decisions with respect to parcels.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition was prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.
©2005 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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