There has consistently been much confusion in the industry as to owners’ rights when it comes to board meetings. Specifically, many boards tend to get confused when it comes to owners’ rights of attendance and participation during board meetings. After all, these meetings are how association business gets transacted, and boards believe there is no room for owner participation when it comes to these meetings.Despite this belief, the Colorado Common Interest Ownership Act (“CCIOA”) is quite clear when it comes to owners’ rights at board meetings, which do not always match up with boards’ beliefs. The two broad categories of rights (attendance and participation) are addressed below:
Right to Attend
Board meetings are open to attendance to all owners or their designated agents. The term “designated agent” simply means an individual who the owner designates in writing as his/her agent authorized to attend board meetings on his/her behalf. The notion of open meetings is directly connected to the push towards transparency by association boards.An open meeting means that a board cannot stop owners from attending the meeting and listening to information being discussed and votes being taken. However, owners’ right to attend is not the same thing as owners’ right to participate and the right of participation is discussed later in this article. The boards’ obligation to allow owners to attend, and the owners’ rights to attend board meetings are also extended to meetings of committees.The only exception to the open meeting requirement is the right of a board to go into executive session, which is essentially a “closed door” session at which owners and other individuals may be excluded. Executive sessions are set forth in CCIOA and allow boards to exclude owners from portions of board meetings as long as one of the below six subject matters is being discussed:1. Matters pertaining to employees or management contract or involving employment, promotion, discipline, or dismissal;2. Consultation with legal counsel;3. Investigative proceedings concerning possible or actual criminal misconduct;4. Matters subject to constitutional, statutory, or judicially imposed requirements prohibiting disclosure (such as medical records);5. Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy; or6. Review of or discussion concerning communication from legal counsel.If going into an executive session, the board need only announce that it is going into executive session and the general subject matter of discussion. An announcement must also be made when the board comes out of executive session. Other than the above, there is no statutory requirement with respect to what needs to be contained in the meeting minutes pertaining to executive sessions.
Owner Participation
In 2006, SB-100 changed the world as many boards knew it by revising a portion of CCIOA and specifically requiring boards to allow owners to speak during board meetings. However, such right to speak is not unlimited and, in fact, is very pointed as to when owners must be allowed to exercise such rights.Pursuant to Section 308(2.5)(b) of CCIOA, owners must be afforded an opportunity to speak for or against a particular issue prior to the board conducting a vote on such issue. What this practically means is that at a point determined by the board, but before taking a formal vote on a particular issue, the board must allow a reasonable number of owners to speak on both sides of the issue. After allowing such opportunity, the board may then proceed with its vote.It is also important to note that owners must be afforded the opportunity to speak prior to every vote that is taken by the board. Thus, if the vote has five items it will be voting on during a particular board meeting, owners must be afforded a total of five opportunities to speak—that’s one opportunity per voting issue. Even if the board affords owners an opportunity to speak at an owners’ forum, it must still provide another opportunity to speak prior to each vote.Notwithstanding the above, CCIOA authorizes boards to place reasonable time restrictions on persons speaking during the board meeting. This means a board can limit discussion to one minute per owner or such other time that the board feels is appropriate. Additionally, if there are several owners who all wish to speak on an issue, the boards need only allow “a reasonable number of persons to speak on each side of the issue”.The best way to effectuate these speaking opportunities is to incorporate the terms under which owners can speak into the association’s conduct of meetings policy. If your community does not address owners’ rights to speak in its conduct of meetings policy, we highly encourage you to get in touch with the community’s legal counsel to discuss adding this verbiage into your policy.If you have questions or would like to discuss owners’ rights at meetings in more detail, please contact a Altitude Community Law attorney at 303.432.9999.