210042-6pg becker sunshine law

1 PAGE 5 becker & POLIAKOFFCOMMUNITY ASSOCIATION sunshine LAW PAGE 6 First, almost all community associations fall into oneof three categories: a condominium association(governed by Chapter 718 of the florida Statutes); acooperative association (governed by Chapter 719);or a homeowners' association (governed by Chapter720). The sunshine laws applicable to condominiumsand cooperatives discussed herein are essentiallyidentical, so when we mention the law for condos,you can assume that it applies to co-ops as well. Thelaw for HOAs is similar to the condominiumcounterpart, but slightly different in a few keyrespects, as we will any beginners course, we must of course startwith the definitions. All of the relevant laws define a"meeting" of the association's board as any "gathering"of a "quorum" of the board where association businessis "conducted.

2 "The first relevant point is that a quorum must bepresent. This is different than the sunshine laws forpublic officials, where two or more public officialscannot meet, even if this constitutes less than aquorum. The association law is more liberal in thisregard and two directors can discuss associationbusiness (except in the case of a three-member board).One of the most frequently debated topics is whatconstitutes the "conduct" of business. We have seenmany associations whose directors meet under theauspices of "executive sessions", "planning meetings",or "agenda development workshops", argue that aquorum of the board could gather out of the sunshineas long as no binding votes were being are frequently asked the question, "What is the sunshine Law?

3 " Although florida 'sSunshine in Government Act does not apply to community associations, the statutesapplicable to condominiums, cooperatives, and homeowners' associations each containtheir own " sunshine " requirements. We use the term " sunshine " as a shorthand phrase, andnot as a legal definition. We are pleased to offer you this guide, which sets forth the various" sunshine " requirements applicable to community associations. We encourage you to referto florida Statutes and current case law as the definitive source on these legal Association sunshine LawMEETING NOTICE REQUIREMENTSS unshine Laws for CommitteesAs we have learned by now, the sunshine laws forcondominium associations and homeowners'associations contain many similarities, but alsosome important both condos and HOAs, there are certaincommittees that must always operate in thesunshine, which means they must post notice ofmeetings, permit all association members to attendmeetings and keep minutes.

4 Operating in thesunshine also means the committee must permit otherunit owners to speak to designated agenda sunshine laws for homeowners' associationsapply to committees that can make final decisionsregarding the expenditure of association funds, orcommittees that are vested with the power toapprove or disapprove architectural decisions withrespect to parcels in the community. The sunshinelaws for condominiums apply to committees thatare empowered to take final action on behalf of theboard, or committees that make recommendationsto the board regarding the association budget. Acommittee to which sunshine laws apply iscommonly referred to as a "statutory committee."Regardless of what the bylaws say, the sunshinerequirements always apply to those committeesthat are required to have open, noticed all other committees, there is a significantdifference between condominium law and HOA homeowners' associations, committees that arenot required by statute to have open, noticedmeetings are not subject to sunshine , the condominium statute provides thatall committees are subject to sunshine requirementsunless the bylaws for the association specificallyexempt committees from the sunshine laws.

5 In ourexperience, very few older bylaws for condominiumassociations exempt committees, and in such cases,the sunshine rules apply to all condominiumassociation committees, not just statutory final point to note is that members ofcondominium associations may tape record orvideotape meetings of statutory committees. Theymay also tape record or videotape meetings of non-statutory committees unless the Bylaws contain theabove-noted exemption. HOA members do not,however, have a right to tape record or videotape anycommittee meetings, even those meetings ofcommittees which must operate in the to the sunshine LawEvery rule has its exceptions. In this section, we willlook at the exceptions to the sunshine laws forcondominium and homeowners' noted previously, there are no exceptions to thesunshine law for "executive sessions", "planningsessions", "fact-finding missions", or for any othergathering of a quorum of the board (or, whereapplicable, committees) for the purpose of conductingassociation business.

6 Remember, votes need not betaken for association business to be , the laws for HOAs and condominiumsprovide an exemption regarding legal meetings,found in Section (2)(c) (3) of theCondominium Act and Section (2)(b) of theHOA Act. Specifically, there is an exception to therequirement that board meetings and committeemeetings be open to the owners when there aremeetings between the board or a committee and theassociation's attorney with respect to "proposed orpending litigation", if the meeting is held for thepurpose of "seeking or rendering legal advice."Therefore, association boards (or committees) mayhold closed meetings if they are meeting with legalcounsel to discuss proposed or pending litigation. Therationale for the exemption is obvious.

7 For example,if an association is involved in litigation with amember, it would be unfair to the association topermit the member to attend meetings with theassociation's attorney to discuss the strengths andweaknesses of the case, strategic issues, and the , the HOA and condominium laws alsocontain another exemption, which is found at (2)(b) of the HOA statute and (2)(c)3 of the Condominium Act. This lawprovides that meetings between a quorum of theboard may be closed when "personnel matters" areunder discussion. Presumably, "personnel matters"would be limited to the discussion of specific issuespertaining to employees of the (and committees) should also keep minutes ofattorney-client privileged meetings, particularly if avote is taken at the meeting.

8 The minutes shouldnever reflect attorney-client privileged information,but only who attended the meeting and properdocumentation of any vote that was taken. Type of MeetingCondo/Co-opHOAB oard Meeting48 hours posted with agenda48 hours posted (or pursuant to bylaws)Budget14 days mailed (along with a copy ofPursuant to documentsMeetingthe proposed budget) and posted, unlessdocuments require a longer time periodBoard Meeting14 days mailed and posted - Notice must14 days mailed and posted - Notice mustTo Levy Analso include a statement that assessments will bealso include a statement that assessmentsAssessmentconsidered and provide the nature, estimated cost,will be considered and the nature ofand description of the purposes for the assessmentsassessmentsBoard Meeting14 days mailed and postedNot Applicable (unless requiredTo Establish by documents)

9 Insurance DeductibleBoard Meeting14 days mailed and posted14 days mailed and postedTo Adopt RulesRegarding Unitor Parcel UseAnnual60 days for first notice; 14 days for second14 days mailed, delivered orMeetingnotice, mailed, delivered or electronicallyelectronically transmittedtransmitted and posted(unless bylaws provide otherwise)MemberPursuant to bylaws (usually at least 14 days14 days mailed, delivered orMeeting (other thanmailed, delivered or electronicallyelectronically transmitted (unlessAnnual Meeting)transmitted)bylaws provide otherwise)Committee Committees that take final action on behalf ofMust be posted 48 hours in Meetingthe board or make recommendations to theadvance when a final decisionboard regarding the association budget mustwill be made regarding thenotice their meetings 48 hours in advance, andexpenditure of association fundsthe meetings must be open to unit to meetings of any committeeCommittees that DO NOT take final actionvested with the power to approveon behalf of the board or make or disapprove architecturalrecommendations to the board regardingdecisions with respect to athe association budget must notice theirspecific parcel of residentialmeetings 48 hours in advance, and theproperty owned by a member ofmeeting must be open to the unit owners the the bylaws provide with Must be noticed 48 hours in advance.

10 ButMust be noticed 48 hours in advance (orthe Associationare not open to unit owners when the pursuant to the documents) but are notAttorneyAssociation s attorney is present and the open to owners when the Association s(Board ormeeting is held for the purpose of seekingattorney is present and the meeting is Committee)or rendering legal advice with respect toregarding proposed or pending litigationproposed or pending the contents of the discussion would otherwise be governed by theattorney-client be noticed 48 hours in advance, butMust be noticed 48 hours in advance (orRegardingare not required to be open to unit ownerspursuant to the documents), but are notPersonnel Matterswhen the meeting is held for the purposerequired to be open to owners when the(Board only)of discussing personnel mattersmeeting is held for the purpose of discussing personnel mattersADMINISTRATIVE OFFICESOne East Broward Boulevard, Suite 1800 Fort Lauderdale, FL LauderdaleFort MyersFort Walton BeachMiramarMiamiMorristownNaplesNew YorkNorthern VirginiaOrlandoRed BankSarasotaStuartTallahasseeTampa BayWashington, Palm BeachDefinitionsof the board, although members may only speakto designated items, unless the HOA adopts rulesexpanding this right.