Although the issue is currently under debate in some state legislatures, state laws and association governing documents typically contain provisions that limit attendance at open session board meetings to members of the association, and association governing documents generally define a “member” as an owner of property within the association. Thus, associations generally take the position that, absent special circumstances which have been approved in advance of the meeting, nonmembers of the association are excluded from board meetings.
Notwithstanding the existence of laws and governing documents that prohibit attendance of nonmembers at association board meetings, many associations have experienced situations where a member has attempted to bring their attorney to a board meeting, or have the attorney attend the meeting for the owner. It is not uncommon for this to happen without advance notice, so what happens when the attorney shows up at the meeting? Should he or she be allowed to observe the meeting and/or speak at the meeting? What happens if the attorney interferes with the meeting? Can he or she be directed to leave? What if they refuse to leave? Should the meeting be adjourned?
When member attorneys show up at board meetings it is generally because there are some issues going on with the association that the member wants to have addressed at the board meeting. As one would expect, the interactions between the association’s directors and the member and/or the member’s attorney can become quite adversarial and disruptive to the meeting, resulting in escalated emotions leading to shouting, name calling, threats, and a breakdown of the meeting.
To be prepared to deal with situations involving unexpected nonmember attendance at a board meeting, associations should plan in advance by adopting resolutions relative to policies that address the various scenarios that their directors could be confronted with concerning these issues. While the directors can accomplish much of this work without the assistance of the association’s legal counsel, the process should include working with the association’s legal counsel to ensure the thoroughness of the proposed policies and compliance with applicable state laws and the association’s governing documents. Once the policies are established, they should be provided to all members so that they know what to expect and guide them accordingly. Through this process, the association’s directors should not be caught off guard by the unexpected appearance of the nonmember, and be in a position to handle the situation when it arises in a businesslike and professional manner.