2016 Behind Closed Doors--Open Board Meetings is the LAW!

Answer from Attorney Bar bra St age:

Your question set off numerous red flags for me when I read it. The whole purpose behind many of the revisions to Chapter 720 of the Florida Statutes, the Homeowners Association Act, was to create transparency. When governments operate in secret there is a chance for corruption and dictatorships to form. The same goes for HOAs, which despite court rulings, rule like quasi-governments.

First, your HOA cannot impose fines against the owners unless the authority to do so is included in the governing documents (Declarations, Bylaws and Articles of Incorporation).  (S-bag's governing documents have no authority to fine.)  An older version of the statute provided rules for fining “if the governing documents so provide.” The statute was revised to remove the language allowing fines to become liens and foreclosures if unpaid. Later it was revised to add that language back in if unpaid fines were more than $1000, but it also did not include “if the governing documents so provide.” This did two things. The HOAs began claiming they had a right to fine by statute and instead of fines being $100, we now see fines of $1000 and more. The HOAs do not have a right to fine by statute. The statute in existence at the time the HOA was formed governs unless there is language in the HOA documents which say it is governed by Chapter 720 “as amended for time to time” or something similar.  (S-bag is governed by FS617 and has no "as amended from time to time" provision.)

All committees are required to keep minutes and if the committee has decision-making authority, then the meetings must be open to members and properly noticed. The exception is fining committee hearings, which are not meetings, in which an owner is requested to appear and the committee will consider a fine.  (S-bag's Revitalization Committee has/had decision-making authority but never noticed its meetings to members.  Also, the committee is/was required to make Minutes of all its meetings and presumably contains the motion & discussion about the 2nd legal opinion that was approved and then retracted, without explanation.)

Board meetings and committee meetings which will consider and adopt policies must be open and properly noticed. Any meeting which will adopt a policy or rules and regulations affecting parcel use must be noticed by sending the owners individual notices to their address of record 14 days in advance of the meeting. (Revitalization affects parcel use and must be open and noticed.) Policies and rules cannot be adopted without an open board meeting.

If the Board of Directors is meeting in secret to adopt policies and rules, or adopting these by corresponding with email, they are violating state law. The problem is there is no agency to regulate the HOAs and their violations are a civil matter, not a criminal matter. Your only recourse is to ask for pre-suit mediation and then S u e them if they don’t settle, or start talking to your neighbors to get involved — they need to wake up and pay attention to what is going on now. If they wait until it affects them personally, they are liable to find themselves on the wrong end of a court.




Attorney Joseph Adams Answer: The changes that went into effect on July 1 (2014)of this year provide that board members may communicate by e-mail but may not cast votes on association matters by e-mail. This legislation codified most people’s interpretation of existing law.

The Florida Condominium Act was amended July 1, 2014, to add the following language to the statute: “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.” For reasons I do not know, the Legislature did not similarly amend the statutes applicable to cooperatives and homeowners’ associations (the desirability of uniform laws governing the procedural aspects of the various types of housing associations in Florida is a topic for another day).

Let’s break the new law down into its basic components. First, the law says that directors can use e-mail “as a means of communication.” I am not aware of anyone ever having argued otherwise, so I would say this part of the new law is simply a statutory codification of generally accepted practices. The law now specifically states that directors “may not cast a vote on an association matter via e-mail.” While I would have also thought that the law to have been generally accepted on this point, I suppose there is benefit in a statutory confirmation that e-mail voting is specifically prohibited for condominium association boards.

Where does this leave us? Probably, with many of the same unanswered questions that existed before the new law was passed.

For example, the new law does not specify whether e-mail communications between directors are, or are not, “official records” of the association, and thus open to inspection by unit owners. Does it matter if only the directors’ personal devices are involved in the transmission and reception of the e-mails? If e-mails are official records, how are they to be kept and made available for inspection? Must e-mails be made available if they contain protected information under the statute?

Another issue that is often encountered is whether a particular thread of e-mails collectively constitutes a “vote”, or whether the e-mails are simply a series of communications to obtain input and support for an intended course of action. One is illegal, one is not.

Let’s consider some examples. If the board of directors wants to terminate the management contract with ABC management company and hire XYZ management company, a board vote would typically be required. While the board members can debate to their hearts’ content the relative merits of ABC versus XYZ through e-mail, they cannot vote on either firing ABC or hiring XYZ by e-mail. This can only be done at a meeting.

On the other hand, let’s say that the pool pump at the community swimming pool berns out. A new pump needs to be purchased. This would typically be an item that would not require board approval, but would likely be a decision for the manager, perhaps in consultation with the board president, to make. Let’s also say that the pool contractor tells the manager that he can replace the existing pump for a thousand dollars, or provide a much superior, state-of-the-art type of pump for an extra five hundred dollars. This judgment would probably be within the manager’s decision-making authority, but the manager decides to get the input from all of the board members by e-mail, to make sure they would support whichever course is chosen. In this case, at least in my opinion, no “vote” has been taken, but much like the first example (changing management companies), the decision-making process was conducted solely by e-mail. Is this a distinction with a difference?

Undoubtedly, these are issues that will play out in the courts, the condominium administrative agency, and perhaps through legislative tweaks in the coming years. In the meantime, remember that e-mails are “forever”, and to never hit “send” if you are writing something that you would not want the whole world to see.

The 2014 changes do not permit board members to vote on matters by e-mail or otherwise circumvent the open meeting requirements contained in the Condominium Act; that is still a violation of statute.