You may be surprised to learn your community association is failing to comply with legal requirements for open Board meetings
November 6th, 2019 | Community Association Law Blog
By Eric F. Frizzell, Esq.
At the time our law firm is initially retained to represent community associations, we find that many of them are still not complying with New Jersey law regarding open Board meetings.
The main violation is that Boards are regularly taking binding votes on all matters in closed session and ratifying those votes, sometimes months later, at their next open meeting. This practice clearly violates New Jersey law.
Under the New Jersey Condominium Act and the Planned Real Estate Development Full Disclosure Act, all meetings of an association’s governing Board, except conference or working sessions at which no binding votes are to be taken, must be open to attendance by all unit owners. The four statutory exceptions – matters on which a Board can vote in closed session – are:
• matters that if disclosed would be an unwarranted invasion of individual privacy
• pending or anticipated litigation or contract negotiations
• attorney-client privileged matters to the extent confidentiality is required for the association’s attorney to exercise his/her ethical duties
• matters involving employment, promotion, discipline or dismissal of specific officer or employee of association
If there is a True Emergency that requires a vote before the Board can meet in person, it is generally accepted that the Board can vote by phone or email, and ratify the action taken at its next regular open meeting.
But do not use closed session voting/ratification as standard procedure, because doing so could result in a court issuing a permanent injunction requiring the Board to conduct business as required by New Jersey law, or even appointing an outside third party to exercise control over Board meetings. Other important open meetings requirements include:
• All open Board meetings must be held at a location within the development, or, if no “suitable” meeting room is there, elsewhere in the municipality in which the development is located or in an adjoining municipality
• the meeting room must be large enough to “accommodate a reasonable number of unit owners who might wish to attend”
• Unit owners have the right to attend but not to speak, although the best practice is to provide a portion of the meeting for unit owners to be heard
• Unit owner participation is wholly within the Board’s discretion, unless a specific by-law provides otherwise
• Give unit owners at least 48 hours advance notice of the time, date and location of open meetings, and the agenda, to the extent known
• There is no requirement to mail notice of Board meetings to unit owners (unless specifically required by the association’s by-laws), but an association must post notice “prominently” in a place on its property “accessible at all times to all unit owners” and file it in the association’s management office
• The association must request two local newspapers to publish notice of the meeting at no charge, as a public service announcement
And … further note that:
• The Open Public Meetings Act (“Sunshine Law”) does not apply to community associations, but only to certain public governmental entities
• Unit owners have no right to give a proxy to someone else to attend a Board meeting (as opposed to a unit owners’ meeting), to tape record a meeting, or to bring an attorney or court reporter to a meeting. But if a unit owner provides a notarized power of attorney to someone else that allows their attendance at a Board meeting, the Board must honor that POA
• Roberts Rules of Order do not automatically apply to Board meetings – so if someone in the audience stands up and yells “A point of order – you must recognize me” or otherwise invokes Roberts Rules, rest assured they do not apply unless they have been adopted by the Board as the meeting procedures or are specifically required by the association’s by-laws
Contact us if you have any question about complying with New Jersey law regarding open Board meetings for your condominium association, HOA, or cooperative.