How to Sort Out the Legal Requirements for the Various Types of Association Meetings
In Part I, we discussed the difference between board meetings and membership meetings. We also described the difference between business meetings of the board, workshops, and executive sessions. Now we can focus on the specific matters that are deemed confidential by New Jersey law, which can be the subject of executive sessions for the purpose of both discussion and decision making.
Statutory open meeting requirements are found in both the New Jersey Condominium Act and the Planned Real Estate Development Full Disclosure Act (PREDFA). PREDFA requires an association’s by-laws to include:
A requirement that all meetings of the executive board, except conference or working sessions at which no binding votes are to be taken, shall be open to attendance by all unit owners, and adequate notice of any such meeting shall be given to all unit owners in such manner as the bylaws shall prescribe; except that the executive board may exclude or restrict attendance at those meetings, or portions of meetings, dealing with (1) any matter the disclosure of which would constitute an unwarranted invasion of individual privacy; (2) any pending or anticipated litigation or contract negotiations; (3) any matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer, or (4) any matter involving the employment, promotion, discipline or dismissal of a specific officer or employee of the association.
The Condominium Act’s provision is very similar and contains the same exceptions.
As stated in Part I, workshop meetings cannot include decision making. In contrast, the four categories noted above – privacy issues, litigation or contract negotiations, attorney-client advice, and personnel issues – can not only be discussed in an executive session, but decisions concerning those topics can be made confidentially. Privacy issues can include a discussion of a request for an assessment payment plan based on an illness or other medical condition. It could similarly include a request for a handicap accommodation that requires a discussion of someone’s medical status. Pending or anticipated litigation or contract negotiations need not involve an attorney, but obviously certain (but not all) attorney-client conversations are privileged and confidential. The privilege attaches to communications involving legal advice and the sharing of confidential information. While that may describe most of the communications between a board and an attorney, there may be communications that do not fall within that category.
The law also provides that owners must be given adequate notice of open meetings. Adequate notice has been defined by Section 5:20-1.2 of the New Jersey Administrative Code as:
written notice, at least 48 hours in advance, giving the time, date, location and, to the extent known, the agenda of any regular, special, or rescheduled meeting, other than a conference or working session at which no binding votes are to be taken, which notice shall be:
Posted prominently in at least one place on the condominium property that is accessible at all times to the unit owners;
Mailed, telephoned, telegrammed, or hand delivered to at least two newspapers that have been designated by the governing board or by the association to receive such notices because they have the greatest likelihood of informing the greatest number of unit owners; and
Filed with the person responsible for administering the business office of the association.
Note that sending notices to the newspapers does NOT mean that you have to pay for a legal advertisement. This was modeled on the public body open meetings act, where local newspapers are interested in publishing information about governmental meetings. So if the association’s notice is simply ignored by the newspaper, the requirements of the regulation have been fulfilled anyway.
For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw, on Facebook at: njcondolaw, and on LinkedIn at: Hill Wallack Community Association Attorneys.