Legal aspects of communication maryland 05-06-10

Legal Aspects of Communication

Community Association InstituteWashington Metropolitan Chapter

Kimberley M. O’Halloran, Attorney at lawRees Broome, PC

&Thomas L. Willis, CMCA, PCAM

Zalco Realty, Inc./Association Bridge, LLC

Program Overview

I. Introductions and Welcome

II. Communications between Board/Association and membership

III. Communications between Board members

IV. Other communications(Managers and members, third parties, litigation issues)

Communications between Board and Membership

• Membership meetings• Notices prior to meeting

• Must have language regarding additional meeting if the Board wants to allow this option

• Must be crystal clear• Think outside of the box, i.e. photos of candidates• Include separate instruction sheet• Clarify good standing issues (i.e. must be in good standing for quorum)

• Watch timelines both in governing documents and by law (45 days for nominations, 15 days before election for name to be on ballot)

• If you are going to call the additional meeting that same night/day at a different time, publish at least 15 days in advance.

• Alphabetical list of candidates• Directed proxies – tell them what happens if not directed

• At the Membership meeting• New business/open forum• Diffusing difficult situations/anger• Controlling the meeting/allowing owners

opportunity to speak• Challenges to notices/proxies• Board responses to complaints/verbal attacks• Documents that are required

• Prior minutes• Budget documents, if applicable

Board Meetings

Board Meetings

The Board must conduct the business on the agenda at the meeting.

Meetings must be open (subject to some specific exemptions).

Owners are not part of the business portion of the meeting and have no right to interrupt the Board during the meeting.

There is no requirement that residents be permitted to speak during the business portion of the meeting or to address the Board.

However, owners should be given an opportunity to address the Board:

– No requirement that the Board respond to the criticism or conflict.

– No requirement that the owners be given all the time in the world

– Set ground rules– Have open forum at the end of the meeting to ensure that

the business is conducted

If there is a big project looming, Board may wish to have entire Board meeting on that topic with additional time for open forum

Meeting Notices Common Pitfalls –MD Condos

Adoption of Rules – Section 11-111 of Condo Act.

Approval of Easements (FIOS/Comcast) – Section 11-125 of Condo Act requires 30 days advance notice prior to meeting and opportunity for owner comment.

Approval of Annual Budget – Section 11-109.2 of Condo Act requires notice of proposed budget to be provided 30 days prior to meeting where budget is adopted.

Committee Meetings If there is a committee charter, be sure that is being followed.

Board members on the committee are not in charge of the committee unless designated by the charter or a vote of the committee

Same requirements for open sessions – See definitions section of Section 11-101(i) of Condo Act

Some committees lack the ability to make substantive decisions and are there to assist the Board in decisions – THEY CANNOT OVERSTEP THEIR AUTHORITY OR THE ACTION IS INVALID

Dealing With Disruptive Members

Dealing With Disruptive MembersA. Control of the meeting is essential -

1. Good Agenda 2. Develop good meeting procedures 3. Good meeting planning (e.g. time and location of the meeting)

B. Tactics for dealing with a disruptive Member: 1. Listen to the Member2 Let the Member tell his entire story (within reason)3. Suggest a resolution (if a resolution presents itself)4. Agree to disagree5. Deal with the present issue only6. Follow the Agenda7. Invite the dissident to get involved (e.g. join a

committee)

Dealing With Disruptive Members

C. When the disruptive Member poses a threat, the presiding officer should consider the following options: 1. Adjourn the meeting – possibly reconvene in another location

2. Call the police

D. When the Board is aware of a contentious issue, the Board should consider the following options:

1. Record the meeting – audio or video2. Hire a security guard or off duty police officer to attend the

meeting3. Assign a Parliamentarian

Meeting Minutes

Meeting minutes are the business record of the association -

1. What to include, and NOT include

2. When minutes should be made available for distribution, voting, etc.

3. Committees should have meeting minutes as well.

Executive Sessions(§§ 11-109.1 and 11B-111)

May be closed only for specific purposes:1. Matters related to employees/personnel;2. Protection of privacy of people in matters not related to assoc. business;3. Consultation with counsel on legal matters;4. Consultation with others on legal matters5. Investigative proceedings regarding criminal misconduct;6. Legal or judicial requirement that matter be withheld from public; and 7. Discussion of individual assessment accounts.

Executive Session Cont’d

This means that you cannot withhold or discuss in closed session:

- Enactment of resolutions (i.e. hammering out the details of a new parking scheme).

- Budget considerations (except personnel details – salaries of specific employees,

etc.)

Community Communications

Community Communications1. Regular communication with community is a good idea, and

early communication regarding a large project or decision is helpful.

2. Plan ahead – consider annual planning calendar.3. Choose the venue, frequency and content that’s right for

your situation – news you can use that adds value to membership:

Website Central posting locations Email blasts Newsletters – electronic or hard copy Routine resident correspondence

4. These do not take the place of meeting notices and other notices for the Association.

5. Board needs to control the content of the information and who can respond/post.

(i.e. editorial control of newsletter, limiting posts on website by members)

Community Communications

6. Start positive, end positive -highlight value to all, especially when communicating difficult issues and rules.

7. Social networking sites – Better left alone- Can request unauthorized pages to be removed if a group puts it up without permission.

8. The more information to the membership the better. The more avenues of information the better, but only if controlled. (i.e. if Board is overwhelmed, pick only one avenue to communicate).

Issues regarding communication between Board members

Emails between Board members:– Cannot use emails as a veiled “planning session”.

– The Board’s discussion is something that the membership wants to see on issues and should be in open sessions.

– Board members are volunteers with personal lives – may not give an issue full attention via email while at work.

– There is a question as to whether these email discussions or communications would constitute a book or record of the association subject to disclosure.

Emails are discoverable– In litigation with an owner, the owner would be

entitled to relevant Board emails on the topic at issue: Personal opinions regarding owners will be divulged. If emails discuss an error by the Board, they will be

divulged. These emails can lead to embarrassment and significant

litigation expenses. Board members should send emails with the same tone

and opinions that they would feel comfortable expressing in person at a meeting.

Voting by Board Outside Meeting

Confirm that governing documents authorize action without a meeting.

File supporting documents with the minutes of the next meeting to show that the decision was made.

May want to add it to the agenda for the next Board meeting to make owners aware of the action taken.

Closed Meetings of Board

May meet for only specific, limited statutorily authorized purposes.

“A statement of the time, place, and purpose of any closed meeting, the record of the vote of each board member by which any meeting was closed, and the authority under this section for closing any meeting shall be included in the minutes of the next meeting of the board of directors.”

Can take vote in executive session – do not need to reopen the meeting for the vote to be taken.

Technology and Board Meetings

Telephone Conference Skype or Web??????

- Requires enabling language in Declaration, Articles or Bylaws – amendments may be necessary.

Violation Hearings

MD Condo Act: Specifically states that the hearing shall be held in executive session.– Board members held to same standard as “regular”

executive sessions (i.e. minutes and confidentiality of information).

MD HOA Act: No requirements stated.

Other Communications Issues

Emails from members/residents to management with Board issues.

Litigation hold

Delinquencies and information regarding same to be given to owners.

Other Communications Issues

Avoiding Landmines

Other Communications Issues

…or put another way, don’t step in……

Other Communications Issues

…wait – let’s go positive with this …

Five Common Landmines - #1

The Poo… Failure to read before

commuunicating– The docs– Resolutions– Policies– The Act– Contract terms– The whole email– Your own work!

The Fertilizer… Read Docs and Act before preparing

notices or correspondence Trust, but verify Call the lawyer if need be If rushed, remember – if you don’t

have time to do it right now. When will you have time to do it again?

Best time to negotiate termination clauses is when you’re still in love..

Standard form contracts can help Have somebody proof it OR put it

down and read it fresh later

Five Common Landmines - #2

The Poo… Failure to follow up in

WRITING – Contract amendments– “Hot issue” phone

conversations– Contract performance

clarifications

“But he said…” = YOU LOSE!

The Fertilizer… Always memorialize contract

changes, change orders, etc. and have both parties sign or initial

“Thank you for your time today. To recap our conversation” email

“Following up on our meeting of X date… “

Take advantage of information gold when you get it

Remember CYA is the byproduct of doing good business

Five Common Landmines - #3

The Poo… Failure to maintain

contemporaneous business records

The Fertilizer… Maintain voice

mail/phone logs Maintain activity record

– daytimer, Outlook calendar, task lists, etc.

Memos to file Hand meeting notes

Five Common Landmines - #4

The Poo… Allowing emotions to

color a communication Imagining anybody

really cares how you feel

The Fertilizer… It’s good to feel what you write,

but not always good to write what you feel

Remember, your job is usually to calm it down, not torque it up

Find and use a vehicle to release emotions

Never let negative people rent space in your mind

Focus communication on principle, not ego or personality

Sgt. Joe Friday approach

Five Common Landmines - #5

The Poo… Covering up an error or

lack of knowledge by over communicating - “fluffing it”

Avoiding problems by failing to communicate

The Fertilizer… Fess up – cats in a bag Tell them you don’t know, but

you’ll find out – and do it Know who you are and know

what you don’t know Eat the frog Remember only one guy was

perfect & he got killed for it “We have met the enemy and

he is us”

In Conclusion…..

Leaders and managers – Doing the right thing and doing things right

Keep learning new stuff and reminding yourself stuff you already knew

Use your resources Work smart, then hard Be healthy Be excellent

Thank you!