The manager sitting across from me looked as if she had just walked 5 miles through a blizzard without a coat. She might actually have enjoyed that exercise more than the one she had just endured — attending the monthly board meeting at a community association she managed. The scenario she described will be all-too recognizable to many managers and board members:
- The meetings rarely begin on time and often run past 10pm.
- Discussions even of minor issues are endless and often inconclusive.
- Issues decided at a previous meeting continued to be revisited and discussed.
- Disagreements frequently turn into shouting matches.
- Meetings typically end because the board members are exhausted, not because they have completed the business at hand.
What is surprising about these meetings is not that they accomplish so little, but that they accomplish anything at all. Fortunately, this is more the exception than the rule. While all board meetings are not models of productivity, many boards, if not most of them, actually manage to conduct their business with a minimum of fuss and an admirable measure of efficiency. But these successful meetings don’t happen by chance; they happen by design, and that design begins with an agenda.
Plan for Success
A familiar adage holds, “If you don’t have a destination in mind, any path will take you there.” If a meeting lacks an agenda, it will go anywhere and everywhere and end up going nowhere. The agenda provides a road map for the meeting, identifying the issues to be discussed and establishing the order in which business will be transacted. Knowing what is on the agenda allows board members, at least in theory, to obtain necessary information and begin formulating their views before the meeting begins.
It helps, of course, if board members actually review the agenda and any accompanying reports in advance, which they don’t always. But it takes more than advance preparation and an agenda to produce a successful meeting; boards also need a set of rules to guide their discussions.
Meetings don’t have to be rigid or overly formal, but they do have to be orderly. Some boards use Robert’s Rules of Order —the bible of parliamentary procedure — but use of Robert’s Rules is not recommended for the reason that such rules are too complicated and somewhat stifling. Oftentimes board members focus so much on the procedural details that they lose sight of the substantive issues they are supposed to be discussing. In fact, boards don’t need hundreds of pages of detailed rules to govern their meetings; a few essentials will provide a workable structure for their discussions. The most important:
- Require a formal “motion” before an item is discussed. This will ensure that more than one person thinks the issue is worth discussing.
- Allow only one person — recognized by the chairperson — to speak at a time.
- Insist on standards of civility — no name calling or personal attacks and no interrupting the speaker.
- Set a time limit for the meeting as a whole and for each speaker on each issue. Otherwise, boards end up spending too much time on relatively minor issues and not enough time on mores significant ones. If a majority of the board members think a topic requires more time, they can always vote to extend the discussion.
A Steady Hand
A reasonable agenda, advance preparation and rules of order provide the foundation for an effective meeting — the equivalent of the tracks on which a train runs. But like a train, a meeting needs a steady hand on the wheel to keep it on course.
Conducting a meeting requires a certain amount of skill, which not everyone has, and no small measure of tact, with which some are more blessed than others. You want the person in charge to control the discussion with a firm hand but not a heavy one, giving all board members a chance to express their views, but requiring them to stick to the topic and adhere to the time limits.
The board president usually conducts the meetings, but sometimes another board member is a better choice. The association manager will sometimes chair meetings at the board’s request, but most prefer to play an advisory role. As a rule, it is better for board members to run their own meetings, to make it clear that it is the board and not their advisors (managers and attorneys) who are making decisions for the association.
Some owners think they have an absolute right to participate in board meetings and some board members think it is best to hold their meetings behind closed doors. Both are wrong. The “open meeting laws” that require governmental entities to hold public meetings do not apply to community association boards in Colorado.
This notwithstanding, the Colorado Common Interest Ownership Act (the statute governing community associations in Colorado) contains its own requirements with respect to board meetings. For the most part, board meetings must be open to attendance by members of associations or their representatives. However, there are six exceptions to this rule that allow boards to go into an “executive session”, or a closed door session, excluding owners.
The six exceptions are discussions related to: 1) employment issues or management agreements, 2) consultation with legal counsel, 3) criminal misconduct, 4) constitutionally or legally privileged and protected topics (such as medical records and attorney-client privileged information), 5) privacy issues, and 6) review of information provided by legal counsel even if the attorney is not actually present at the meeting. If a board discussion item does not fall under one of the above enumerated exceptions, it must be discussed at an open session of the board.
With respect to owner participation during board meetings, until recently there was no such right in Colorado. However, with the passage of certain legislation in 2005 and 2006, owners are now entitled to certain participatory rights. More specifically, owners must now be afforded the opportunity to speak on any issue the board is voting upon, prior to the board vote. This right is not unlimited; the board has discretion to determine when owners are allowed to speak (as long as it is before the vote) and place time restrictions on speaking. Also, the board may set limits on how many persons may speak on a particular issue as long as a “reasonable” number of owners are permitted to speak on both sides of the issue.
How Often and How Many
Colorado requires associations to hold annual meetings, but beyond that, most are silent on the question of how often boards must meet. Unless the association’s by-laws or covenants address the issue, boards are generally free to meet as often or as infrequently as they choose. The size and complexity of the community (and the commitments of board members) will typically dictate the meeting schedule. Push-back from some managers, who are beginning to charge an additional fee for attending excessive (or excessively long) meetings, is also encouraging some boards to shorten their meetings and reduce their frequency. A good rule of thumb: Boards should meet as often as needed (but no more often than is required) to conduct the association’s business.
My Kingdom for a Quorum
Hectic schedules, busy lives and non-resident owners often result in erratic attendance at meetings, leaving some boards, at least occasionally, short of the quorum required to make decisions. One solution to this problem is the use of director proxies, which are discussed in more detail below. If the lack of a quorum becomes a chronic problem rather than an occasional one, the board may have to consider more drastic measures, such as amending its bylaws to contain an attendance policy and allowing removal of directors who miss a certain number of meetings.
Use and Abuse of Proxies
Pursuant to Colorado law, proxies for regular board meetings may only be used if the association’s bylaws provide such authority. Furthermore, director proxies must be directed to specify how the proxy holder must vote on each issue coming before the board even if the bylaws do not require this. If they bylaws are silent with respect to director proxies, this option may not be utilized by the board unless the bylaws are amended.
With respect to membership meetings, most association documents specify a quorum (varying from as few as 10 percent to as many as 50 percent of eligible voters) is required to conduct association business at an annual meeting, the most important item typically being the election of board members. To avoid situations where a quorum of owners is not present, and thus an election not possible, Colorado law specifically allows the use of proxies by owners.
This system usually works well, but abuses are possible. Board members or other owners have been known to badger residents to vote a certain way or mislead them about the votes they were casting. Where proxies have been abused, or owners are concerned that they might be, boards can adopt a policy requiring proxies to be notarized and submitted on designated official (and original) forms. Tightening and formalizing the process in this way reduces the potential for harassment and makes it more difficult to forge the proxies. However, boards don’t want to make the proxy procedures so difficult and so burdensome that owners are discouraged from using this alternative. Owners who aren’t able or wiling to vote by proxy may end up not voting at all.
While proxy voting at annual meetings is perfectly legal, communities have to be concerned about the appearance of fairness. The more votes cast by proxy and the more proxies cast by a single owner, the more suspect the process may seem to others. Obviously, the far better solution is to find ways to encourage as many owners as possible to attend the meetings and exercise their right and obligation to participate in the decision-making process.
The lack of a quorum, common at annual meetings, is actually fairly rare at regular board meetings. Owners elected to serve on their association boards usually take their obligations seriously. A more common problem for boards is resolving deadlocks among the voting members. These can occur when a sitting member resigns or when the board is unable to fill all open positions, creating an even number of members who are evenly and irreconcilably divided on some issues. Boards should anticipate that possibility and adopt procedures to deal with it. They could agree to toss a coin, or perhaps appoint a subcommittee of owners to break tie votes when necessary. But deadlocked boards should never ask the association manager to cast the deciding vote. Not only is the manager not legally authorized to cast such vote, but this creates an untenable position for the manager, who must choose between alienating the board members on the losing side by voting against them, or alienating the entire board by refusing to resolve the impasse.
After the Fact
What happens after board meetings can be almost as important as what happens during the meetings. Some board members take votes against their proposals personally, as rejections of them rather than of the suggestions they have made. And they sometimes take their disappointment and anger outside of the meeting room, complaining publicly about the decision and even encouraging owners to overturn it. This behavior undermines the decision-making process, exacerbates tensions, and erodes trust; the damage it can cause in a community can’t be overstated. Board members must be willing to accept that “majority rules” applies to votes they don’t like as well as to those with which they agree.
All board decisions won’t be unanimous, nor should they be. Honest differences of opinion are healthy, encouraging an exchange of ideas that improves the decision-making process and contributes to the successful meetings boards want to have. While “good” board meetings won’t always produce “good” decisions, they will almost certainly reduce the number of bad ones.