Board members often question whether they can meet informally, in a working session, rather than scheduling an actual board meeting in order to, for example, discuss a complex or controversial issue or review contractor proposals. The working session enables the board to get together without having to worry about all of the technicalities of holding a meeting, such as giving owners notice of the meeting, or having a suitable meeting location to accommodate all of the potential attendees. In addition, the working session allows the board to “get its arms around an issue” and perhaps even reach a consensus without having to worry about the owners being present. Working sessions sound like a great idea and make practical sense, but are they legal?
In Maryland, all board meetings of condominiums and homeowner associations must be open to all owners, unless the purpose of the meeting falls within one of the narrowly defined exceptions set forth in the law whereby the board is permitted to meet in closed session. These narrowly defined exceptions include consulting with legal counsel on legal matters, discussing employment matters, reviewing an individual owner’s assessment account and investigating possible criminal misconduct. Please note that a couple of years ago, the former catch all whereby the board could close a meeting on the vote of two-thirds of the board members present for some exceptional reason so compelling as to override the general public policy in favor of open meetings was removed from the law. The rationale behind the open meeting requirement is to provide owners with the opportunity to keep informed of matters impacting the association and to prevent the board from acting secretly. In turn, open meetings assist the board in defending itself against claims from disgruntled owners who claim that the board is enveloped in a shroud of secrecy or has been acting improperly.
Many purists argue that anytime the board meets to discuss association business, the meeting is de facto a board meeting and, therefore, unless the purpose of the meeting is one that, by law, can be held in closed session, the meeting must be open to all of the owners. Using this logic, working sessions, which are not open to owners, are in violation of Maryland law. Others claim that working sessions are not meetings and, as long as no official decisions are made at these working sessions, board members are permitted to meet informally.
Recognizing the benefit of working sessions, while still being mindful of the open meeting requirements for Maryland condominium and homeowner associations, perhaps a compromise position is that the board can hold a working session, but that any decision must be made at a board meeting. In addition, rather than having all of the discussion occur at the working session and having only the vote occur at the open board meeting, I suggest that associations have some discussion at the board meetings so that owners are aware of the thought process and parameters that were discussed in reaching a particular decision. To date, there has not been any case law in Maryland addressing the legality of working sessions. However, if the issue of whether condominium or homeowner association boards can meet in working sessions is ever litigated, I cannot opine on whether the Court would permit working sessions as long as no vote is taken, or whether the Court would rule that working sessions are in violation of the open meeting requirements set forth in Maryland law and, therefore, are prohibited for condominiums and homeowner associations.
Please note that District of Columbia Condominium law does not impose an open meeting requirement on condominiums or cooperatives. Moreover, by statute, Maryland cooperatives are not subject to open meeting requirements either. Although they are not required to do so, I suggest that District of Columbia condominiums and Maryland cooperatives hold open meetings, unless the issue to be addressed is such that it would not be prudent for the board to discuss it at an open meeting.
For more information, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Community Associations Practice Group.
