Members' Participation Rights After SB 100

SB 100, which is formally known as the act "Concerning Increased Protection for Homeowners," may change the way your association handles the rights of owners to participate during association meetings. For purposes of this discussion, there are only two types meetings that are relevant—meetings of owners and meetings of the board of directors.

Meetings of the owners are generally annual meetings that are held for the purpose of electing directors. The law now mandates that owners or their designated representatives be allowed to attend, listen and speak at an appropriate time during the deliberations and proceedings. Furthermore, it provides that the board shall provide for a reasonable number of persons to speak on each side of an issue. In our experience, most associations follow these practices at owners' meetings already.

However, those practices do not always carry over to meetings of the board of directors. The main purpose of board meetings is for the board to conduct its business. Our advice for most associations is that it is a good practice to interact with the owners as much as is possible. That said, for a select few associations, where board meetings are contentious and last until the early morning hours, it can be a struggle just to get the checks signed. When the business of the association cannot be handled due to lengthy debate at the meetings, the whole process needs to be re-evaluated.

SB 100 weighs in on this issue. The act states that "for regular or special meetings of the board, unit owners who are not board members may not participate in any deliberation or discussion unless expressly authorized by a vote of the majority of a quorum of the board. This appears to be a rather straightforward statement that non-director owners do not have an absolute right to speak at board meetings. As an aside, in the event that your association's governing documents provide that owners may speak at board meetings or there is a sample board meeting agenda that includes an "open forum," then your association should follow those guidelines accordingly.

However, SB 100 goes on to say, in C.R.S. 38-33.3-308(2.5)(b), that "the board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a unit owner or a unit owner's designated representative to speak before the board takes formal action on an item under discussion, in addition to any other opportunities to speak."

It is important to remember that owners conduct business at owners' meetings and that directors conduct business at directors' meetings. Therefore, there is at the very least, an argument that owners are entitled to speak at directors' meetings. Additionally, the language suggests that owners may be entitled to speak before each board decision is made.

For those select few associations, the board meetings can become even more intolerable. Good people find that they do not need the headaches associated with serving on a board and resign. As a result, the community suffers.

To avoid such an issue, the board might adopt and distribute the Community Associations Institute's "Rights and Responsibilities" document (which can be downloaded from http://www.caionline.org/rightsandresponsibilities/index.cfm?ad=rights) to facilitate a discussion regarding how a community association is designed to operate.

If that discussion does not help achieve a better balance between board business and owner discussion, the board might hand out a detailed agenda at the beginning of a meeting and take owners' comments at that time. Once the comments have been heard, the board can then get on with business. Because each association is unique, what may work for one association may not work for another. What is clear, though, is that it is the board's duty to properly administer the association and to negotiate a fair course between owner input and board efficiency.