Executive (Closed) Session Meeting Minutes and Evidence in Violation Hearings Required
“Business as usual” for Illinois condo boards has now changed. A very big decision by the Illinois appellate court (First District) makes number of Illinois condominium board standard practices illegal. Boucher v. 111 East Chestnut Condominium Association1 held that a board, in levying fines against a belligerent unit owner who verbally berated and insulted management and association employees, violated his constitutional right to free speech (his behavior included telling an employee that she was not allowed be on the same elevator as him because she was a “f—ing employee”). The court also held that the board breached its fiduciary duty by refusing to provide the unit owner with video footage of the incidents, the written complaints regarding the violations, or the video recording of the violation hearing.
Up until now, common practice of many condominium association boards and managers included:
Not keeping meeting minutes during a closed / executive session (only for open meetings)
Unless the declaration or rules required, not providing violators certain evidence related to their violations (i.e. written complaints, video footage, etc.)
Considering past behavior of the unit owner accused of a violation when levying a fine
Condominium boards and managers must now reconsider and potentially change their standard operating procedures.
First, a bit of background on the case. The board, via the association’s attorney, issued proper violation notices against the unit owner for noxious and offensive activity in the common elements (which had, in the past, allegedly included displaying his genitals at a meeting). The unit owner requested a hearing, which the board provided. At the hearing, the board refused to provide the unit owner documents relating to the violation, including the written complaints against him and security camera footage showing him berate an employee on an elevator or provide him with a copy of the audio and video recording it made during the executive session violation hearing. The board then levied fines against the unit owner ($500 total). The unit owner sued the association for violating the Illinois Condominium Act (“ILCPA”) for withholding the violation evidence and failing to provide meeting minutes or the video recording of the hearing, which the court found was a violation of his constitutional rights and the board’s fiduciary duty under the ILCPA. One of the judges, dissenting (i.e. disagreeing in writing) with the ruling, strongly disagreed that the board limited his constitutional right to free speech by issuing a violation and levying fines against him for acting like a jerk in the common elements. Nonetheless, the holding went in favor of the unit owner.
Here are the recommended procedures for associations in light of the ruling:
1. Meeting Minutes for Executive Sessions
Despite the fact that the ILCPA treats executive session meetings and open meetings quite differently, the Appellate Court held that the board must keep minutes of executive session/violation hearings that amount to a meeting (i.e. when a quorum is present). Our advice is this: skip making any audio or video recordings of executive sessions unless the board is prepared to turn over the recording to requesting owners (who now have a right, in the absence of meeting minutes, to demand it). The ILCPA does not permit unit owners to record executive sessions (only open meetings), so the board is better not making any recording at all.
The board MUST, however, keep general meeting minutes of the executive session if a quorum of the board is present, as it now qualifies as a “meeting.” Be sure to include at least the following in the minutes for executive sessions:
Presence of quorum
Purpose of the closed session
Time called to order and time of adjournment
The actual vote on any issues discussed in an executive session MUST be taken during an open board meeting (which has long been the requirement). Making decisions and taking votes in an executive session is against the law. Do not allow the meetings to become a transcript of the meeting – keep it short and simple.
2. Providing Evidence of Violations
Despite the fact that nothing in the ILCPA requires boards to provide unit owners with written complaints, video footage, or testimonial reports of the violations alleged (unless, of course, there is a provision in the association’s rules or declaration), the Appellate Court held that the board must do so in order to exercise its power to levy fines.
Obviously, this makes it tough to protect the anonymity of employees and other unit owners who wish to file a complaint against a disruptive person, making them arguably less likely to file a complaint at all (after all, that complaint is now available to the violator whom the unit owner or employee then has to see in the mailroom, elevator, etc.). However, upon request, and before levying any fines against the unit owner, the board must provide that evidence.
3. Considerations When Issuing Violations
In light of the Boucher decision, Illinois courts are more inclined to consider insulting and aggressive language against employees and management to be “free speech.” I’ve often said (as have many of my fellow association attorneys) there is, unfortunately, there is no law against being an a – – hole, even in associations. However, whereas before, my recommendation was to issue a violation under the declaration’s “noxious and offensive activity” provision, the Boucher ruling has changed that; before issuing a violation and / or fine against someone for inflammatory speech or behavior, it’s best to check with your attorney to avoid a potential lawsuit.
Finally, a decision to issue a violation and / or fine should include information on all the charges it intends to consider when deciding whether or not to fine. The appellate court stated that an individual must have all the facts the board is considering (both past and present) so the accused can adequately defend him or herself.