Leadership Legal

An Inconvenient Truth: Open Meetings

Open meeting requirements restrict when and how a board of directors may discuss and conduct association business.  With few exceptions, all board meetings, including those of any committee or subcommittee, must be open to all members of the association.

To fully appreciate and understand the spirit and intent behind open meeting laws, let’s briefly consider their history. The concept of open meetings developed in response to growing concerns and suspicion from citizens over government meetings that were held in secret.  It seemed only fair that tax-paying constituents who are affected by the decisions of their elected officials should be entitled to attend meetings where deliberations were occurring, and decisions were being made.

Open meetings are intended to create transparency and foster confidence in an association.  Work sessions, off-line discussions, and substantive email exchanges among directors are prohibited. Trying to find loopholes in the open meeting requirement ignores the spirit of democracy and deprives members of their statutory right to attend meetings of an association and observe the deliberative process. To ensure compliance with open meeting requirements, it is important to know when a “meeting” is actually taking place.

What constitutes a meeting is usually defined by (a) its purpose, and (b) the presence of a quorum. While board members should feel free to socialize together outside of a “meeting,” even if a quorum of directors results, they cannot discuss association-related business.

This is one of the challenges that board members often face – balancing their rights as a homeowner living in the community with the duties that come with serving as a director. If the directors wind up discussing or deliberating association business, their informal gathering has effectively become a “meeting” of the association and they have violated the open meeting requirement. It also is important to keep in mind that advance notice of all meetings of an association and the board of directors must be given to association members.

As such, open meeting requirements must be observed. All board members are bound by the duty of care, which requires each director to prioritize the interests of the association above their own. If a director fails to comply with open meeting requirements or remains willfully ignorant about their application, the director can expose herself and the association to liability.

The following is a summary of each local jurisdiction’s open meeting requirements. It is important to note that an association’s governing documents may also impose additional open meeting requirements and should always be consulted to ensure compliance.

Virginia:

  • 55-510.1 of the Property Owners’ Association Act and §55-79.75 of the Virginia Condominium Act provide near identical requirements for open meetings. The Virginia statutes provide that all meetings of the Board, and its committees and subcommittees, must be open to all members of the Association. Both the Virginia Condominium Act and Property Owners’ Association Act expressly prohibit a board from using “work sessions or other informal gatherings” to circumvent the open meeting requirements established by law.  The Virginia statutes contain identical lists of exceptions to the open meeting requirement, which allow the Board, committee or subcommittee to enter into a closed session only for the following limited purposes: (1) to discuss personnel matters; (2) consult with legal counsel; (3) discuss and consider contracts, probable or pending litigation and matters involving violations by owners of the condominium instruments or rules and regulations; and (4) matters relating to the personal liability of a unit owner to the association.

Maryland:

  • 11-109.1 of the Maryland Condominium Act and § 11B-111 of the Maryland Homeowners Association Act require open meetings, with the exception of a limited number of topics that are permitted to be discussed by the Board during a closed session. The Maryland statutes provide the same list of exceptions to the open meeting requirement, that allow the Board to enter a closed session only for the following purposes: (1) to discuss personnel matters; (2) for the protection of the privacy or reputation of individuals in matters not related to association business; (3) consult with legal counsel; (4) discuss pending or potential litigation or other legal matters; (5) investigate possible or actual criminal misconduct; (6) for consideration of the terms or conditions of a business transaction in the negotiation stage, if disclosure could adversely affect the economic interest of the association; (7) to comply with any law that requires matters not to be publicly disclosed; and (8) to discuss owner assessment accounts.

District of Columbia:

  • 42-1903.03(b)(1) of the D.C. Condominium Act requires all meetings of the unit owners’ association, its executive board and committees to be open for observation by all unit owners in good standing. Similar to the laws in Virginia and Maryland, §42-1903.03(b)(5) of the D.C. Condominium Act permits a limited number of topics to be discussed during a closed session, including: (1) personnel matters; (2) contracts, leases and other commercial transactions currently in or under negotiation; (3) pending or anticipated litigation; (4) matters involving state or local administrative or other formal proceedings before a government tribunal for enforcement of the condominium instruments or rules and regulations; (5) consultation with legal counsel; (6) matters involving individual unit owners or members; and (7) for such other exceptional reason so compelling as to override the general public policy in favor of open meetings.

To avoid the appearance of impropriety, follow the open meeting requirements required by law.  Try to be as respectful as possible of the rights of members to attend meetings.  If the Board is conducting most, if not all, of its business during open meetings and publishing minutes from each meeting as a record of the actions taken, then community members will have less reason to suspect inappropriate behavior, and the democratic process lives on.


By Susan L. Truskey, ESQ.

Susie is an attorney at Whiteford, Taylor & Preston, LLP. Her practice is devoted to the representation of condominium and community association clients throughout Virginia and the District of Columbia.  She has been named a “Rising Star” by the Washington Metropolitan Chapter Community Associations Institute and currently co-chairs the Chapter’s Quorum Editorial Committee.

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