Can Owners View Draft HOA Meeting Minutes?
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Editor's note: Liz White was recently quoted in the following article on HOAleader.com, concerning owners' ability to view draft meeting minutes.
A reader on the HOAleader.com discussion board asks: "A member requested a copy of the board meeting minutes prior to the approval. We conduct open board meetings, and [agendas] are posted in advance. Does a member have the right to these unapproved minutes?" Fellow HOAleader.com readers were split in their responses to our reader's quandary. Here, experts tell us how they'd approach the issue.
The Simple Answer
"That's a real sticky wicket," says Elizabeth White, a shareholder and head of the community associations practice at the law firm of LeClairRyan in Williamsburg, Va. White doesn't just mean the distribution of draft meeting minutes. Our reader's question brings together several difficult issues, including who's entitled to see minutes when and what should be in meeting minutes.
The simple answer is that your state law may dictate that you provide minutes to owners within a certain amount of time, and that may mean that you need to distribute draft minutes. "In California, boards are required to make meeting minutes available within 30 days of the meeting date," says Debra A. Warren, principal of Cinnabar Consulting in San Rafael, Calif., which provides training and employee development services to community association management firms and training and strategic planning sessions for association board members.
That should be no problem for boards that meet and approve minutes monthly. But if your board meets quarterly, the issue becomes more complicated. "In most states, owners are entitled to that information regardless of whether the board has had its next meeting or not," explains Duane McPherson, the San Rafael, Calif.-based division president at RealManage, an association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas. "If boards meet monthly, sending draft minutes isn't usually necessary because minutes are approved the next month. So most of the time, owners have access to the minutes within 30 days, and that works just fine.
"But some boards meet quarterly and don't approve meeting minutes until the next quarter, and owners are still allowed to get those minutes," adds McPherson. "So you've got to have the ability to send them in a draft form to those who request them, and we've done that. The biggest question then is determining when to send the minutes out in draft form. That's something the board needs to work out while complying with its state law."
If you must produce draft minutes for your members, be sure they're identified as such. "A 'draft' stamp or a box at the top of the minutes that says, 'Draft; hasn't been adopted by the board' is really prudent," says White.
The Complicated Part of the Answer
While you may need to send draft minutes to owners, you have to be careful that you don't send drafts that contain information that opens your association to liability or communicates the wrong message to members.
"When you have hot-issue items, you want to make sure everything that goes into meeting packages is suitable for viewing by the entire membership so they won't get wrong or privileged information," explains White, "and the minutes fall into that category."
Unfortunately, that can happen when minutes haven't been reviewed and approved by the board. "You want the person who's drafting the minutes to have an understanding of what should and shouldn't go in minutes," says White. "Associations shouldn't be doing narrative style minutes, and a lot of times where the rub comes in with draft minutes is narrative-style minutes. When you take the narrative out of minutes, besides typos, there shouldn't be a whole lot in those minutes. If you're doing resolution-style minutes, which cover only the resolutions proposed and the board's action on them, the secretary shouldn't have all that difficulty producing draft minutes."
Warren also believes too-detailed minutes can cause problems for boards because minutes aren't a good way to communicate with members. "To protect the corporation, the minutes should be drafted in a deliberate and specific way, and those don't always tell members why something happened," says Warren. "So while I do think it's a good idea to send draft minutes so members can see what the board's decisions are, minutes are generally not the best communication vehicle. Boards should have other ways of communicating with members and not make the meeting minutes do that for them."
There can sometimes be conflicts within associations over how much information should be included in minutes. But you should stick to your guns about making sure minutes contain only actions taken by the board. "At one association, we had a problem over what to include in the minutes, and it was a major education effort," says White. "There's still a small faction of owners who say there's a dictatorship mentality and that the board doesn't want to the membership to know going on. But that's what meetings and the newsletter are for. Board meetings are open, and owners can also get involved with committees. If your goal is to impart information, that's not what minutes are for. All that matters in minutes is the action the board ultimately took."
This article originally published on HOAleader.com -- the Practical Guide to Homeowner Association Management. Republished with permission. All rights reserved.
