Condo association boards generally have considerable leeway to establish the rules and procedures governing their meetings, subject only to any requirements established by state law and their governing documents. Apart from these typically minimal requirements (addressing mainly the frequency of meetings, quorum and advance notice) boards can usually organize their meetings however they choose. While there aren’t a lot of specific requirements for board meetings, there are best practices boards should follow to ensure that their meetings operate smoothly, with minimal friction among board members and between the board and the owners they represent. I’m going to focus on some common questions that highlight the most important best practices we recommend to our clients.

Some governing documents do require boards to meet in person to conduct association business, to make decisions, vote and take any official actions. However, a relatively new Massachusetts law authorizes boards to meet remotely – using electronic platforms such as Zoom – even if their documents specify otherwise or are silent on the question. Boards that meet remotely – as many do now – have to follow any requirements their documents establish for in-person meetings, including requirements for:

A quorum;
Notice to board members and owners; and
Accessibility. If owners are allowed to attend board meetings (one of the best practices we recommend), they must be able to observe the remote proceedings. So boards meeting via Zoom, or Team, for example, should provide a link owners can use to “attend.”

**Can boards hold meetings via e-mail?**

No. The law allowing boards to meet remotely requires that participants be able to interact in real time, which isn’t possible via e-mail. However, the law does allow board members to vote via e-mail. A best practice here: If dealing with a controversial issue, the board might want to have all board members sign a document certifying the vote.

**Must owners be allowed to speak at board meetings?**

That’s up to the board. The best practice here is to set aside a designated time for owner comments, with limits on the time allocated for owner participation and the time each owner is allowed to speak. Boards should make it clear in both in-person and remote meetings that aside from the time designated for owner participation, owners are not allowed to comment. These limitations are relatively easy to enforce in electronic meetings, where boards can mute the microphones of attendees – an option that does not exist for in-person meetings.

**Are minutes required for board meetings?**

This isn’t a typical requirement but it is definitely a good practice to have a written record of the issues boards discuss, the decisions they make and the actions they take. The standard advice – and it applies equally to in-person and electronic meetings – is: “Minutes aren’t hours.” That is – the minutes should concisely summarize what occurs at a meeting but they should not report every word spoken. The angry comments one trustee made about another, or the disparaging description of the contractor who wasn’t chosen aren’t essential to an understanding of what the board did but they could be used against the association in court. With that risk in mind, boards definitely should not record their electronic meetings and they should prohibit owners from doing so.

**Can boards meet in “executive sessions” that owners aren’t allowed to attend?**

Even if open meetings are required, boards can hold executive sessions, but only to discuss a limited number of topics:

Ongoing, pending or potential litigation;
Any information covered by the attorney-client privilege;
Personnel matters;
Contract negotiations;
Collections, rules enforcement or other issues involving residents that might compromise their privacy.

If open meetings aren’t required, boards can, in theory, discuss anything in executive session, but the best practice is transparency, and an executive session is anything but. Even if the discussion is innocuous – what color to paint the exercise room or how the Red Sox are doing (depressing, perhaps, but hardly controversial), owners will assume that boards are meeting behind closed doors because they don’t want owners to know what they are doing. That may not be true, but a closed door creates a negative perception that boards will be hard-pressed to refute.

Before going into an executive session, boards should announce that intention during the public meeting and briefly explain the reason for it, for example: to discuss a “a management contract” or “a personnel matter.” The minutes of an executive session (and there should be some) should be equally brief: “The board decided to revise the terms of a contract” or “the association’s attorney provided an update on pending litigation.”

Going into executive session during an in-person meeting simply requires going into another room and closing the door. In an electronic meeting, the board would have to end the public meeting and initiate a new one to which owners do not have access.

If a few board members discuss an association issue informally – in person or via e-mail – is that considered an official meeting requiring notice to owners and an official record of the discussion?

Unlike jurors, who can deliberate only as a group inside the jury room, board members can discuss board business anywhere they like. A discussion involving some – or even all – of them, held in the parking lot, a coffee shop or the home of a trustee would not be considered a “meeting,” and would not be subject to notice, quorum or owner access requirements. Although boards cannot conduct meetings via e-mail, they can discuss association issues in e-mail messages. That said, board members should recognize that these e-mail communications could be considered official board records that should be preserved and could be subject to discovery demands in litigation. With that possibility in mind, board members should be careful about what they say in e-mail messages and how they say it. That advice applies to all association-related e-mail messages board members send - not just to those they exchange with each other. The basic rule: Don’t say anything you wouldn’t want to see introduced as evidence in a lawsuit or in large type as a headline in a newspaper.

**Can a newly constituted board revoke a decision by a previous one?**

Yes, and this happens frequently – especially when the new board members ran for office precisely because they didn’t like the actions of the trustees they have replaced.

**Can a board revisit a decision if a board member has second thoughts and wants to change his/her vote?**

This is certainly possible but it’s not usually a good idea. Consider this likely scenario: On a 4-3 vote, the three members who were outvoted will join the wishy-washy one to achieve the majority required to reconsider the vote and reverse the result they didn’t like. While there is nothing wrong with this, the optics aren’t great. The change will make the board look indecisive (not a good look) and may create the perception that the board member who changed his vote was pressured to do so – also not a good look. Boards have to be concerned not just about the actions they take but also about how those actions are perceived, which is often more important.

The board’s image matters, and the most important component of that image is the perception that board members are acting in the best interests of the community association. This isn’t just a matter of optics; it’s a legal requirement. Board members have a fiduciary obligation to put the interests of the association ahead of their personal interests as owners. Board members who forget this obligation create legal risks for themselves and threaten the strength and viability of the communities they govern.

Please contact William Thompson directly or our MEEB Attorneys at law@meeb.com with any questions regarding board meetings.

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