HOA voting without public meetings

Hi again...

I have posted in the past and have another question.
Our Florida HOA has bid on a $65,000 contract and has made this decision in private without holding a board meeting. I am not sure of the extent of the Florida Sunshine Law and if it has any relevance here, but are they allowed to hold meetings in private and ratify $65,000.00 contracts?

In our most recent board meeting, only the second one this year, the board had the HOA Lawyer present. Our past 2005 president asked a question (3 minutes to speak) regarding having the board conduct business at public meetings and the lawyer responded. I am taking this from transcript so some of it has incorrect grammer. It is also a heated issue (Public Meetings and conducting community business) as you will see

(snip)


Second last thing, I would seriously urge you to conduct your business at regular scheduled board meetings. The DOT contract was ratified at a board meeting? Was that in progress or was that done already? This needs to be held - this in public? You don’t agree?

(Board – Karen) Thanks but were not. No (in agreement)

(Jim Lawyer) The board is running the show they don’t have to qualify anything to you. They should or should not do. You ran it when you were the president. These people get paid nothing. It is guys like this here who want to change you who (confusion and talking)

(Kurt) I want to hear from my board. Jim am I wrong?

(Jim Lawyer) For your information, they only have to have to hold one board meeting. That is only what they are obligated to do. They are holding the meetings for the board purposes and not yours. They need to schedule their meetings when they feel they have a purpose. They don’t have to listen to you to tell them when and how they conduct business. You have instituted a view on how they should run the present association.

• (Kurt) Did you hear the word urge in there? I would urge you to do this? Am I wrong in this? That they should really be voting on issues in public? Is that wrong?

• (Lawyer) Urge you to do everything obviously in intent?

• (Kurt) What would be my intent? To discredit individuals? I don’t think so.

• (Lawyer) I am just giving you my observation.

• (Kurt) Jim am I wrong?

• (Lawyer) The temperament in this room you can cut it with a knife.

• (Kurt) I started out with Kudos and am I wrong on this point?

• (Carr) I need to say one thing for the record. If people do write in, in the 30 day time period they will get a response. I would strongly urge you to send in your issues in writing instead of sitting here for a protracted complaint session which we can address it and have documentation and everything else.

As you can see, this meeting really got heated and our current board has been very non commuicative to our entire community. No newsletter for 6 months, and only two meetings. The threw out our old management company and hired a new one. The new management company co-ordinated the $65,000.00 contract to their preferred landscape contractor. Many of the community members feel that because this was done in private without a public meeting that we should have some say so in how our HOA conducts business.

Can anyone comment on this? (sorry for the long winded question)

Best Regards;
H. Oldenburg

Hi again...
The original post is here...
http://www.hoatalk.com/Forum/tabid/55/view/topic/forumid/1/postid/3261/Default.aspx

Paul...

Thank you for your response. Your asumption that our board has ultimate authority to go to contract is correct. To our communities greater concern is that business is being conducted without a public meeting. The board does have the right to vote on community improvements without the consent of the general community. Our real concern is that these decisions are being done in the privacy of email and meetings that are not posted. The new 2006 board has done this and continues to do this. I will quoste from the actual Fla. Sunshine Law page.

The sunshine law does clearly state:
Q. What is the Sunshine Law?
A. Florida's Government-in-the-Sunshine law provides a right of access to governmental proceedings at both the state and local levels. It applies to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. There is also a constitutionally guaranteed right of access. Virtually all state and local collegial public bodies are covered by the open meetings requirements with the exception of the judiciary and the state Legislature which has its own constitutional provision relating to access.

Q. What are the requirements of the Sunshine law?
A. The Sunshine law requires that 1) meetings of boards or commissions must be open to the public; 2) reasonable notice of such meetings must be given, and 3) minutes of the meeting must be taken.

The first meeting was held without the correct "reasonable notice" and this is actually stated in our bylaws. The second meeting, as you can see in the transcript, shows our past 2005 president asking why and urging the current board to be responsible to the Sunshine Law and requesting they hold meetings on large decisions in public. The lawyer would not answer the question when it was asked if they can conduct business without a meeting. So my question is:
Can the board conduct business and vote on contracts without a public meeting?

Herb

Herb and Paul, Please take this to email. It appears you just want readers to agree that you are RIGHT instead of working together to improve your HOA.

Gerald;

Thank you for your response. Yes, it appears that you are correct regarding the Sunshine Law. I am wondering if we have any recourse in attempting to have our current board be more open and less secretive?

Our 2005 board used our web site which helped us tremendously during 04/05 hurricane season. 70% of our community was severly damaged and all insurance information and FEMA info was posted. Our new 06 board has shunned the web site and tried to have it closed. Our new board has not organized effective communication nor given the community any information on how they are spending money. After attempting to close the web site which costs $120.00 per year, the board just spent $3000.00 on printing costs for a newletter that is supposted to be mailed this coming month! One of the original complaints about the web site was it's cost which the 06 board thought was $120.00 per month!

We are getting notification of monies spend only after the fact and since we have had only 2 meetings with half the year gone, it appears this will be status quo for the rest of the year. In the transcript, our current board president stated she will not be supporting an open board agenda as when asked by our 2005 president, she simply stated "Thanks but were not. No."

Herb

Gerald is right, typically "open meetings" laws apply to governments, not private businesses (and an HOA is a private business, not a government).

Your recourse is your vote: don't like how the board conducts business? Vote them out!

I know this is a reply to an old post but this is for the benefit of those using the search button. In Florida, the actions that you are describing is probably not legal. Florida Statute 720.303.2 says:

(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege.

(b) Members have the right to attend all meetings of the board and to speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes. The association may adopt written reasonable rules expanding the right of members to speak and governing the frequency, duration, and other manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak. Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the members is inapplicable to meetings between the board or a committee and the association's attorney, with respect to meetings of the board held for the purpose of discussing personnel matters.

(c) The bylaws shall provide for giving notice to parcel owners and members of all board meetings and, if they do not do so, shall be deemed to provide the following:

1. Notices of all board meetings must be posted in a conspicuous place in the community at least 48 hours in advance of a meeting, except in an emergency. In the alternative, if notice is not posted in a conspicuous place in the community, notice of each board meeting must be mailed or delivered to each member at least 7 days before the meeting, except in an emergency. Notwithstanding this general notice requirement, for communities with more than 100 members, the bylaws may provide for a reasonable alternative to posting or mailing of notice for each board meeting, including publication of notice, provision of a schedule of board meetings, or the conspicuous posting and repeated broadcasting of the notice on a closed-circuit cable television system serving the homeowners' association. However, if broadcast notice is used in lieu of a notice posted physically in the community, the notice must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required. When broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda. The bylaws or amended bylaws may provide for giving notice by electronic transmission in a manner authorized by law for meetings of the board of directors, committee meetings requiring notice under this section, and annual and special meetings of the members; however, a member must consent in writing to receiving notice by electronic transmission.

22. An assessment may not be levied at a board meeting unless the notice of the meeting includes a statement that assessments will be considered and the nature of the assessments. Written notice of any meeting at which special assessments will be considered or at which amendments to rules regarding parcel use will be considered must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting.

3. Directors may not vote by proxy or by secret ballot at board meetings, except that secret ballots may be used in the election of officers. This subsection also applies to the meetings of any committee or other similar body, when a final decision will be made regarding the expenditure of association funds, and to any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.

(d) If 20 percent of the total voting interests petition the board to address an item of business, the board shall at its next regular board meeting or at a special meeting of the board, but not later than 60 days after the receipt of the petition, take the petitioned item up on an agenda. The board shall give all members notice of the meeting at which the petitioned item shall be addressed in accordance with the 14-day notice requirement pursuant to subparagraph (c)2. Each member shall have the right to speak for at least 3 minutes on each matter placed on the agenda by petition, provided that the member signs the sign-up sheet, if one is provided, or submits a written request to speak prior to the meeting. Other than addressing the petitioned item at the meeting, the board is not obligated to take any other action requested by the petition.

If the vote was cast in person, then that would be collection of board members of voting strength and since no notice was given and it was not open to the members it was in violation of this law.

However, the By-Laws of my Association allow us to vote on things outside of a board meeting as long as it is in writing. If that is done it has the same authority as if it was decided in a Board meeting. Since we still have to abide by the "gathering clause" we either pass around a sheet to sign off on the decision or we get votes by email. However, if one board member fails to vote it is as if it never happened and was just a dry run.

The Sunshine law in Florida is primarily for governmental agencies, but there are also provisions for other organizations. In Florida, everything is supposed to be open and transparent.

Note: There may also be a problem with the $65,000 contract depending on how it was done. See other posts regarding not getting competitive bids if over 10% of the annual budget.