What can condo boards consider closed-door ‘personnel issues’?
STUART, Fla. – Jan. 8, 2019 – Question: Our HOA board called a private board meeting for 'Personnel Issues.' The meeting was held to discuss an email a director sent by mistake to the general manager. The email had some satirical comments about a board member's decision.
The board voted to ask the director to resign for ethics reasons, and if they did not resign to remove them from their officer position. Is this a meeting that can be legally closed?
They also had private board meetings which were called to discuss a vendor contract but had it without an attorney present. The way I read the Sunshine laws that is also not a legal meeting. When I asked the board president about the meetings, he said their attorney said they were legal because they were contract negotiations. Your opinion? – R.L., Port St. Lucie
Answer: Thank you for your questions. The law applicable the Homeowners Associations is Section 720.303, Florida Statutes which provides that:
"Notwithstanding any other law, meetings between the board or a committee and the association's attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors." The law for condominiums is identical.
A meeting of the board to discuss the actions or communications of a director or officer as you have described is not a personnel matter in my opinion. An officer or director of the association is not the association's "personnel."
If the meeting was about comments made about the general manager, then it could be considered a personnel matter, but that would mean it involved something about the general manager who is the association's employee, i.e. personnel. You indicated the purpose of the meeting was to discuss comments made to the GM about the board – not about the GM. This does not qualify in my opinion as a personnel matter that would allow the meeting to be closed to members.
Meetings to discuss negotiations about the vendor contract when the association's legal counsel was not present are also not meetings that can be closed to the members. Even if the association attorney was present at the meeting, it likely should not have been closed because the purpose of the meeting was not to discuss "proposed or pending litigation" as required by the law below.
Boards often want to hold closed meetings to discuss matters that they otherwise do not want to publicize, sometimes for good reason such as negotiation of contract terms when there are several service bidders, but neither of the two exceptions apply for this purpose.
Question: Can the association require a $25 processing fee for approving rentals? – C.G., Palm City
Answer: Condominium and cooperative associations can only charge a fee in connection with a rental application if 1) The governing documents require the Association to approve rentals or leases and 2) The governing documents expressly provide that a fee can be charged.
Further, if the fee is authorized, the law provides that it cannot be greater than $100 per applicant with each adult deemed to be a separate applicant. However, spouses are deemed to be a single applicant. The HOA law does not address these issues, but in my opinion, the authority to charge a rental application fee must be found in the governing documents.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice.
The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
Editor's note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
© 2019 Journal Media Group, Richard D. DeBoest
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