When Board majority breaks the law

Why not report them to the authorities.

There is no privacy in a HOA open meeting set up. All members have the right to know what their HOA is dealing with. The HOA board meets in public and makes it's decision public to the rest of the membership. They are the ones who make the decisions with the power of their vote. Individual owner's voting rights are limited to voting on board members and changes to the rules/special meetings. Otherwise, the board has the operating vote on such things like the budget.

My policy was we did not discuss names when it came to collections. We did not hand out the Collections report but to the board members. The expenditure was fully open, disclosed, and discussed. What the membership needed to know was the HOA board was taking action and was working on resolution. All done in front of all the attendees to the meeting. Shows the HOA board is doing their job. If you don't like their decisions then you get a group of the individual members to vote that board member out.

How about announcing "If this discussion continues, I will take extensive notes and publish them on the association website along with a statement that this took place improperly in close session".

Kerry,

First, I would think an organization as large as your would have the president set the agenda, after input from other board members.

If you were going to quote them song and verse, this from your buddies at Davis-Stirling.com might help:

Legal Advice. Non-litigation matters, such as legal opinions related insurance, personnel, maintenance, easements, recalls, etc. would also be appropriate topics for executive session. Whenever the association's attorney is giving legal advice to the board, it is protected under Evidence Code §§950-962.

Think that might fall under what your Finance Committee was looking at.

I must not have written this very clearly, Richard. What the FC recommends that the Board do is: to vote to approve SEEKING an opinion from our GC.

We will not discuss a legal opinion. There will not yet be any opinion to discuss on 5/31.

In our HOA, directors and Owners, too, turn in their suggested agenda items to the PM & President 10 days before the meeting. The latter make sure there is a rationale for the agenda item and that the item doesn't contradict any laws or our own docs. They then coordinate the agendas for both meetings. Here, the FC chair is the treasurer and the VP also is on the FC. I doubt the FC asked it be in ES. I don't know if this is typical or not, but it seems to work (usually).

Art T5 : Accepting your factuals being exact, remaining in that Board room is condoning despite the objection. Is a dis-incentive to others who might be now or in future sharing some or all of your concerns.

However frequent/infrequent the scenario you describe, it is unlikely to be impeded in the short term unless the objector asks that the Minutes record that person's withdrawal during the discussion.

Recorded thusly or not, a refusal could be followed by an e-mail or letter confirming the objection was made & what ensued. The objector's hidden voice will know immediately that it was the correct thing to do even if others decline to listen to their own hidden voice or have none.

I disagree, Richard, that the Board's decision to pay to SEEK a legal opinion on an overall maintenance obligation matter needs to be in ES. I do, of course, know about disclosing in the Open Mtg., etc., etc.

But this thread is about ART. what advice to do you have for him?

Bob's thoughts look good. And I agree with Art that there's no reason to discuss rule changes, additions, etc. in ES!

Are you sure the open meeting law applies to HOAs? In some states (like mine), it only applies to government agencies, although there are HOA laws that call for open meetings (I believe my state addressed that in 2009). Check your documents to see what they say about executive sessions, when they're supposed to be held and under what circumstances (there may be state HOA law that deals with that as well).

If the majority of the board insists on moving forward with the discussion and you've made your objection known, you might want to stay anyway to see what's going on so you don't get blindsided with something more obnoxious. If there's a vote, abstain from it and once again, explain why. Perhaps you do need to threaten to advise the homeowners of the proposal and ask them to notify the board with their thoughts and suggestions - you might not need to bring up the fact it was discussed in executive session, but simply say "what would you think if a rule regarding X was enacted? Do you think there's a problem in this area? if so, what do you think is the best way it should be addressed? Send your thoughts and suggestions to the Board."

It won't be necessary to say all this was discussed in executive session or who said what - let the rest of the board explain why and how the issue came up. It may also put them on notice that if it tries to sneak something past the homeowners, it may not work - and people may not appreciate the subject not being discussed with homeowners in an open forum (if they weren't willing to do that, what else are these board members trying to hide? Perhaps they should be given the boot?)

This arose at my HOA recently. The HOA attorney stated in writing that the Board had voted in January, prior to the Annual Meeting, not to limit voting rights in a certain way. Several HOA members said, okay, then we want to see the Minutes, citing the state's law on corporations having to offer shareholder-members the chance to view Minutes at reasonable times. The HOA attorney wrote back that the vote was done in executive session and so the Minutes would have to be redacted. But the Board did agree to provide the redacted Minutes (with a great deal of foot-dragging; they know they're in trouble).

In Illinois, assuming your HOA is incorporated, I think the pertinent state law here is:

(805 ILCS 105/107.75) (from Ch. 32, par. 107.75)
Sec. 107.75. Books and records.
(a) Each corporation shall keep correct and complete books and records of account and shall also keep minutes of the proceedings of its members, board of directors and committees having any of the authority of the board of directors; and shall keep at its registered office or principal office a record giving the names and addresses of its members entitled to vote. Any voting member shall have the right to examine, in person or by agent, at any reasonable time or times, the corporation's books and records of account and minutes, and to make extracts therefrom, but only for a proper purpose. In order to exercise this right, a voting member must make written demand upon the corporation, stating with particularity the records sought to be examined and the purpose therefor. If the corporation refuses examination, the voting member may file suit in the circuit court of the county in which either the registered agent or principal office of the corporation is located to compel by mandamus or otherwise such examination as may be proper. If a voting member seeks to examine books or records of account the burden of proof is upon the voting member to establish a proper purpose. If the purpose is to examine minutes, the burden of proof is upon the corporation to establish that the voting member does not have a proper purpose.

Now theory to practice:
Tell the board about this state law and that failure to produce the Minutes for this non-executive-session item could result in your filing for a writ of mandamus, said filing to explain that the item is non-executive-session material.

I think we lose sight of the big picture. The Open Meeting portion of the Civil Code wasn't changed because Board held "secret" meetings, it was changed because the Boards, under Corporation Code, didn't follow procedure.

Off the record, I couldn't care less what was discussed when for the three people who may show up for a meeting, I am more interested in that relevant information is incorporated into the proper documents for the hundreds that didn't show up.

Our HOA is 200+ condos, nearly 30% absentee landlords, and 11% part-time residents. Attendance at our monthly 6pm open meetings is typically about 25. More, of course, if there's an exciting agenda item, we'll see 35 or so. About 75% of our Owners receive their monthly newsletters online & we post the previous month's approved minutes on the News,

The history here IS of highly secretive boards who merely rubber stamped SOME of their decisions in the open meetings. When I & others became a majority on the Board, I read all Ex. Sess. minutes and learned the discussion & deliberations and some votes illegally took place in those ES meetings.

Luckily, the new Board was able to start construction defects litigation, but the statutes of limitation would have run if we had not gotten on the the Board.

The relationship between the previous board's secrecy & defect litigation is that they DID discuss potential defects, but they never shared w it with Owners. New directors found out because I read old ES minutes and also some emails the secretive directors had exchanged. We new members weren't a majority for a year, but we were able to change the way the Board operated by placing everything in open mtgs. that belonged there.

But your long accounts of CA HOAs, which I already know about, has nothing to do with Art's dilemma in IL.

So, Art, have you decided how you'll handle your board acting illegally? Or, chosen a couple of alternatives?

Art, from the Illinois'Condominium Property Act (which is little different from the nonprofit corporation act):
~~~
Sec. 19. Records of the association; availability for examination.
(b) Any member of an association shall have the right to inspect, examine, and make copies of the records described in subdivisions (1), (2), (3), (4), and (5) of subsection (a) of this Section, in person or by agent, at any reasonable time or times, at the association's principal office. In order to exercise this right, a member must submit a written request to the association's board of managers or its authorized agent, stating with particularity the records sought to be examined. Failure of an association's board of managers to make available all records so requested within 30 days of receipt of the member's written request shall be deemed a denial.
Any member who prevails in an enforcement action to compel examination of records described in subdivisions (1), (2), (3), (4), and (5) of subsection (a) of this Section shall be entitled to recover reasonable attorney's fees and costs from the association.
~~~

Minutes are item (4) above. See http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2200&ChapAct

This is for leverage. I know going to court is a lousy option to exercise.

I think it bears noting that the Illinois Open Meeting Act applies only to public bodies. Condos and HOAs are probably out of luck.

Not sure what IL law provides, but under FL law that would clearly be illegal. That particular discussion -- i.e., one that weighs the pros and cons of making changes to rules that impact the community -- strikes at the core of what a Board is directed to do at OPEN Board meetings, i.e., legislate policy. The fact that a subsequent open meeting would occur doesn't make the illegal discussion legal.

I think the solution is line them up and execute them all, BUT only after due process.

Augustin, you're correct in saying that the Illinois Open Meeting Act doesn't apply to associations, but we have separate open meeting requirements set forth in our Condominium Property Act and our Common Interest Community Association Act.

I agree completely with James and Kerry on the point that the adoption of rules is among the most important issues that are required to be handled in open meetings. I belong to two associations, and the boards of both have been discussing rule changes in executive session. I'm not on either board; I guess my official designation here is gadfly. The boards of our associations are generally not bad, with most members trying to do the right thing. We have one member who, without crossing the line into abusive behavior, can be pushy and somewhat intimidating. I'm not sure whether these discussions are taking place because a majority go along with his idea that it's the right way to operate, or if it's because no one is willing to stand up to him. I'm trying to figure out the best advice I can give to board members who may be in the situation described in my first message.

The case known as "Palm II" (as in roman numeral 2) is a landmark decision of the Illinois Appellate Court dealing with, among other things, what an association board is permitted to do in executive session. (A Google search for "palm ii illinois" will locate it if you want to read it. It's Palm II because this was the second time this litigation, which spanned 14 years, went up to the Appellate Court.) Many lawyers practicing in this area felt the court went too far in restricting closed sessions, but this is now the most authoritative interpretation of Illinois law on the subject.