Robert E. Ducharme| Portsmouth Herald
“Has anyone ever said, ‘I wish I could go to more meetings today?’” - Matt Mullenweg
In addition to the changes to the law on proxies for association meetings noted in the last column, the Legislature this past year also addressed what boards of directors can and cannot do outside of meetings.
Back in 2016 the Legislature noted that board members could not conduct association business outside of meetings, not even at “social gatherings.” The goal was transparency; the fear boards of directors would hide away, set budgets, approve contracts, spend money, etc. outside of meetings that were required to be open to the owners.
The transparency pendulum perhaps swung a little too far that way as it left board members open to attacks from owners that the board was discussing things outside of meetings. Boards of directors, many at least, were flummoxed by the law because they would want to get together and review contract bids, talk about insurance policies, have work sessions on budgets, check in on the status of projects, and more. All of such actions were disallowed, but still carried on.
If the law were strictly followed, boards of directors faced the real possibility of scheduling meetings nearly every week, just to keep tabs on life in their association, making it unwieldy at best. So boards ignored the law and did their best.
The Legislature apparently heard the concerns of their constituents and re-defined what a “meeting” was. Effective January 1, 2025,
A meeting of the board of directors also shall not include informational sessions held by board members to obtain and compare vendor proposals, including but not limited to, landscaping, lawn care, snow removal, septic services, well services, insurance, window cleaning, and common area maintenance; provided that the review and vote on any motions resulting from the informational session shall be conducted at the next scheduled board meeting.
So, boards of directors can now do legally what they were likely doing illegally, i.e. get together and discuss vendors, contracts, have work sessions on projects and more. They just can’t vote on anything other than in a fully noticed and open meeting of the owners.
The pendulum has swung back a bit the other way in trying to find the balance between openness and transparency yet allowing board members to do the day-to-day work the needs of the association demands.
The open meeting requirements, i.e. notice and agenda of any meeting sent to owners at least ten days in advance of each meeting, even if the meeting was to be a closed meeting, also applies to committees, of course, and this caused a bit of a problem as committee members generally want to be less formal.
Some committees went a bit far. I know of one landscaping committee whose chair barred board members from attending, met in secret, started assessing one’s landscaping fees above and beyond what was in the budget, and signed a landscaping contact on behalf the association without the knowledge or approval of the board of directors.
To prevent such wayward actions the Legislature noted that the notice and open meeting requirements will not apply to committees, “if the association's bylaws do not permit the committee to expend association funds or to sign contracts on behalf of the association.” In other words, let your committees remain friendly and informal, meeting to prepare welcome gifts, working on budget figures for the board, finding good members to be nominated for board openings, i.e. whatever a board needs help with.
But, unless the bylaws of your association specially are amended to contain language that notes no committee can spend association funds or sign contracts, then all of the committee meetings have to be out in the open, and noticed to all owners with an agenda, generally with at least 10 days notice.
The final change has to do with the 10 days notice requirements for all board and committee meetings (unless the bylaws say a committee cannot spend association funds or sign contracts). If 70% of the owners live on site, then the notice requirement, for committees or meetings of a board, can drop from ten days to five days.
Now, on to my next meeting of the day.
Attorney Robert E. Ducharme is a former teacher whose civil practice is limited to condominium law, primarily in Rockingham and Strafford counties. He can be reached at red@newhampshirecondolaw.com and Ducharme Law, P.L.L.C., found at www.newhampshirecondolaw.com.
