MINUTES OF BOARD MEETINGS: BOARD NEEDS TO CONTROL THEM

The minutes of board meetings are important legal documents, yet many associations do not pay enough attention to them. Some associations put far too much detail in them, while other boards keep minutes that do not accurately or completely reflect the board's decisions.  The purpose of this article is to explain the purpose of the minutes, to provide some guidelines for keeping the minutes, and to answer common questions posed to us about board minutes.  

The purpose of the minutes is to provide a permanent legal record of the actions of the board.  Every decision made by the board should be recorded in the form of a resolution, and it should identify the movant and the person who seconds the motion together with the results of voting.  If the board feels it is necessary, the minutes may reflect a roll call vote of the board members. In the event that a board member raises an objection to the meeting itself or objects or protests the action of the board, it then would be necessary for the minutes to reflect the identity of the person objecting, describing the objection, and indicating how the board resolved the issue.  In this way, the board will have maintained an objective legal record of the matter.  

The reasons behind why the board is taking an action need not be stated in the minutes and normally this kind of detail should not be stated.  The board may decide to include this when it believes it would be in the best interests of the Association to legally record the rationale and justification for its decisions.  For example, if the board decides not take action that it would ordinarily take, or it decides to take an action that is unusual or controversial, it can be helpful to create a record of why the board made the decision that it did.  It is rare for boards to need to explain themselves in board minutes and this practice probably should be avoided.  

We have reviewed numerous board minutes that provide far too much detail. It is certainly appropriate for the board to communicate with the unit owners regarding the affairs of the Association, why the board is taking certain actions, or what matters it is considering. These communications should be in the form of a newsletter or letter to the owners instead of being inserted into the minutes.  This is because the minutes are intended to be a neutral record of the board's decisions and not a platform for the board to justify its actions or inform the unit owners of its plans.  At the time of the board meetings, the members may not foresee how the minutes might be used or they may not consider that litigation over some issue may occur in the future. During litigation, the board minutes are often used against the board and its individual members, and details, facts, and arguments in those minutes can sometimes be used out of context to impose liability upon the board members.  

Another common issue arises as to who has the authority over the minutes.  While it is generally true that the secretary of the board has primary responsibility for keeping the minutes and other records, it is lawful for the board to delegate the day to day administration of these tasks to the managing agent or some other person under the supervision of the secretary and the board.   Ultimately, the board is responsible for its own minutes.  At the time when the board approves the minutes of the previous meeting, it is necessary for the board to discuss and to adopt appropriate changes or correct errors or omissions. The failure of the board to take control over its own minutes can have disastrous results since the minutes are permanent legal records of the board's actions.  

A common mistake is for the board to take detailed minutes of confidential or sensitive information. For example, if the board is meeting in executive closed session (under circumstances where it is allowed to do so under State law), it is necessary for the board to be extremely sensitive about keeping minutes.  It is usually better not to keep minutes of closed sessions, especially where sensitive confidential information is revealed.  For example, when the board's attorney is giving legal advice to the association, that communication is ordinarily protected from compulsory disclosure under the attorney-client privilege.  By keeping a detailed record of such advice, the board may inadvertently waive its privilege (which means that the confidential information, strategy and advice of the board's attorneys can become available to others). This is especially true when State law gives the unit owners an absolute right to view the minutes or other books and records of the association.  

In summary, the board should exercise control over its minutes and take care that the minutes are being kept accurately and properly, without too little or too much detail, and without disclosing confidential or sensitive information.  Since the board minutes are important legal documents that can have unforeseen consequences, the association should seek legal advice about how to keep and maintain its minutes according to applicable State law.