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MTCA bans recording of board meetings

  • Resolution “unlawful on several grounds,” says attorney
  • “Gross dereliction of fiduciary duty,” says former MTCA president
  • Unit owners not allowed to comment before rule is put into effect
  • Board members again exposed to lawsuit and personal liability

12-Nov-08 – In defiance of state law and the First Amendment, Marina Towers Condominium Association has banned “taping, filming or recording“ of its board meetings.

The resolution was announced at the September 24 meeting and put into effect immediately. A tape recorder in use at the time was then confiscated.

Recording would only be allowed if the unit owner signed a written agreement. The recording could only be for the owner’s personal use. The recording could not be given to anyone else. And the condominium association would retain ownership of the recording.

Violation of the rule would result in a $10,000 fine – against either the unit owner recording the meeting or any “unit owner, tenant or resident” who publishes, rebroadcasts or distributes the recording.

While acknowledging the right of unit owners under the Illinois Condominium Property Act to record the open portion of a condominium board meeting, subject to reasonable rules and regulations, the resolution points to other parts of the Act that says only unit owners may attend meetings and obtain meeting minutes.

A Chicago attorney who specializes in real estate law says the resolution violates the Condominium Property Act, Illinois Constitution, and the First Amendment of the United States Constitution.

According to R. Kymn Harp, an attorney with Robbins, Salomon and Patt, Ltd., “Although the MTCA board…purports to rely upon Section 18(a)(9) of the Condominium Property Act for authority to restrict the recording of the open portion of board meetings and the dissemination thereof, the…interpretation [of the section] is not based upon sound legal grounds.”

Harp says there are six criteria that must be used to make a rule enforceable. For example, the rule must be reasonably related to the purposes for which the association was formed and necessary to protect a legitimate association interest. The rule must not conflict with the Condominium Property Act. And the rule must be adopted by proper board action and made public to all owners and residents before its effective date.

R. Kymn Harp

“Additionally, Illinois case law requires that rules adopted by the board must be objective, evenhanded, nondiscriminatory, and uniformly applied,” says Harp.

(Left) R. Kymn Harp

The resolution claims it would be circulated to unit owners prior to a vote on its inclusion in MTCA rules and regulations. However, with the rule in place now, it’s been seven weeks since it was announced and unit owners still have not received a copy of the resolution.

Rule stymied by First Amendment

The First Amendment is troublesome for the MTCA ban. The Illinois Condominium Property Act says that “no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States of America or Section 4 of Article I of the Illinois Constitution.”

Besides the U.S. Constitution, freedom of speech is protected by the Illinois Constitution.

Two other attorneys, who did not want to be identified, have said the resolution violates the First Amendment. The resolution has been described as “over-the-top,” adopted improperly, and unconstitutional, with the obvious purpose to suppress dissent.

The $10,000 fine, says Harp, is not reasonable or proportionate to the severity of the violation.

“The proposed rule of the MTCA board is unlawful on several grounds. It appears to serve no legitimate association interest; is not narrowly drafted; conflicts with Section 18 of the Condominium Property Act in that it violates Section 4 of Article I of the Illinois Constitution; purports to impose a fine that is not proportionate to the violation; and is not reasonably related to the purpose for which the condominium association has been formed.”

Harp also maintains that the rule appears to conflict with the responsibility of the board to act in a manner reasonably related to the exercise of its fiduciary duty – to the association as a whole and to individual members. “The rule is a clear attempt to chill the free and open discussion and criticism of board actions in violation of the free speech rights guaranteed by the First Amendment to the Constitution of the United States of America.”

Harp says if challenged, the proposed rule would be found in court to be invalid and unenforceable.

“It may also form a basis for board member liability for seeking to deprive citizens of their constitutional right to free speech and dissent.”

Marina City Online to blame for this one

The resolution refers indirectly to Marina City Online. We have obtained recordings of MTCA meetings from unit owners, written a news article about each meeting, and then made available on our web site the original audio. MCO provided the only timely coverage of MTCA board meetings. It can take months for the MTCA’s coverage of its board meetings to appear in the MTCA newsletter. As of November 12, for example, on the MTCA web site the current newsletter is dated June 2008.

Although MTCA claims this hinders people attending board meetings from expressing their opinions, comments from audience members at condo board meetings have not been allowed for the past year.

Former MTCA board president Dr. Martin Flynn says recordings are permitted. “You do not need advance permission. I suppose they can have you sign a form that you will not disrupt the meeting or walk around, or intimidate, and that they have a record of who recorded the meeting but other than that I can’t think of any restriction that does not infringe on your right to record a meeting.”

Dr. Martin Flynn

Dr. Martin Flynn

Flynn, who was on the board from 2000 to 2002, is dubious of MTCA claims that it would own the recording. “Are they laying claim to notes that might be written? Also, state law only addresses the recording of meetings. It does not state, nor can one infer, that the board can determine what is done to the recording afterwards. Would they deny publication of a transcript? And finally, the fine itself is so large as to be egregious and again, cause pause and therefore hinder an owner from even attempting to record. It is a gross dereliction…of their fiduciary duty.”

Flynn recalls that in the 1990s, all board meetings were recorded and transcribed at a cost of $15,000 to $20,000 per year.

The Resolution…

Resolution regarding of the taping, filming or recording of meetings of the board. Whereas, section 18a9 of the Condominium Property Act provides that only unit owners shall have the right to attend meetings of the condominium board of directors and section 19 of the Condominium Property Act provides that only unit owners have a right to obtain minutes of meetings of the condominium board.

Whereas, section 18a9 of the Condominium Property Act also provides the right to tape, film or record the open portions of the condominium board meetings shall [sic] be subject to reasonable rules and regulations.

Whereas, the board wishes to ensure the persons attending the board meeting feel free to express their opinions.

Whereas in the past, unit owners have given recordings of meetings to [sic] the board of directors to a web site which has made the proceedings of the board available to non-unit owners.

Be it resolved by the board of directors of the Marina Towers Condominium Association that effective with this meeting, any unit owner who wishes to tape, film or record the open portions of a condominium board meeting shall first disclose his or her intent to record the proceedings to the chair and those present and second, sign a written agreement on a form provided by the association.

One, that the unit owner will use the tape, film or recording of the meeting only for the unit owner’s personal use.

Two, that the unit owner will not provide the tape, film or recording of the meeting or any portion thereof or any transcript of the meeting or any portion thereof made from the tape, film or recording to any other person, including any web site or other medium for publication, rebroadcast or distribution to any other person.

Three, that the ownership of the contents of the tape, film or recording shall remain with the condominium association.

Four, the agreement shall provide for liquidated damages in the amount of $10,000 for any violation of the written agreement. That any person who tapes, films or records any portion of a condominium board meeting without first signing an agreement or any unit owner, tenant, or resident who publishes, rebroadcasts or distributes to any other person the tape, film or recording of any board meeting without the express written consent of the condominium association shall result in a fine in the amount of $10,000.

Be it further resolved that the board intends to circulate the contents of this resolution to the unit owners prior to a vote on its inclusion in the Marina Towers Condominium Association rules and regulations.