By Deborah Goonan, Independent American Communities
A few months ago, condominium industry special interest groups were pressuring Illinois and Chicago lawmakers to undo transparency provisions added to Illinois Public Act 100-0292 in 2017.
Among other changes, last year’s amendments included a provision regarding unit owner access to a membership roster of fellow condo unit owners. The provision added phone numbers and email addresses to the list of records that the association is required to keep, and thus, part of the official records to which unit owners have a right to access.
The purpose of these amendments was to increase transparency and to offer unit owners the opportunity to contact and communicate with other unit owners with regard to important issued affecting members.
Some community association attorneys and managers, as well as some board members, objected to giving all unit owners access to emails and phone numbers of condo association members. Apparently, a few vocal condo owners complained to their association boards, who then complained to their condo association attorneys, that something must be done to reverse this provision. They claim that providing emails and phone numbers to all association members is an invasion of privacy.
That led to attempts at the state level and in the City of Chicago to undo what had suddenly become a controversial policy.
Two companion bills, HB 5126 / SB3165, were proposed to allow the unit owner to be the gatekeeper of personal information, by opting to exclude all or part of contact information to be shared with owners other than the board of managers. The bills proposed granting a condo association the authority to impose a fine upon any member who would disclose information “in violation of the expressed wishes of the member.”
This would have created two separate contact lists, one full membership list, available only to association board members, and one partial membership list, available to all other unit owners. In other words, only board members would have access to a full roster of members, making it even more difficult to campaign for seat on the condo board, or to simply communicate with other condo members on official business matters affecting the association.
The threat of being fined would have had a chilling effect on providing a unit owner access to the assocation’s membership roster. Thankfully, both bills stalled in committee.
Another bill, SB 572 proposed to eliminate the obligation of the condominium association to provide access of certain member directory records of the association to unit owners (members), notably, emails and phone numbers of co-owners. It also stalled in the Rules Committee.
Around the same time, City of Chicago Aldermen Brendan Reilly and Brian Hopkins submitted an Ordinance that contradicted state law by prohibiting unit owner access to certain official records, including unit owner names, addresses, emails, phone numbers, and weighted voting interests. The Ordinance was passed by City Council in March, sparking a public outcry, as reported by the Chicago Tribune:
In case you missed it, you can read the short-lived Ordinance in this post I published in March.
That draconian Ordinance was temporary, most likely because, shortly after it went into effect, Chicago attorney and condo unit owner/board member Shorge Sato filed a lawsuit against the City of Chicago.
In Sato’s complaint, he explains that withholding unit owner names, addresses, and weighted voting interests invites election fraud, and effectively deprives unit owners of their right to vote, as well as assurances of the integrity of the voting process of the association. Sato requested a Temporary Restraining Order (TRO), to prevent the City of Chicago from enforcing the new Ordinance.
Read Sato’s abbreviated complaint and TRO:
In the following complete argument for an injunction against Chicago Ordinance, Sato states:
Here, Plaintiff has alleged that the Condominium Owners Privacy Ordinance (COPO) infringes upon his fundamental rights regarding his condominium association. Specifically, while the COPO does not literally take away Plaintiff’s right to vote, it takes away his right to vote in a “free and equal election” because without the ability to obtain a full unit owner list, including names and weighted voting percentages, or election ballots and proxies, Plaintiff would be unable to determine whether or not the election results were legitimate. (Cmplt. ¶¶ 6-8). The right to vote in a sham election is no right at all. (Id. ¶ 6). Further, without the right to obtain the full unit owner list – including phone numbers and email addresses – an outsider like Plaintiff (at least in the 1375 building) would be unable to campaign on the same terms as board members. (Id. ¶ 9). The COPO creates two classes of members of a condominium association – “insiders” and “outsiders” – in direct violation of the ICPA. See 765 ILCS 605/18(b)(2) (“[T]he association shall have one class of membership.”)
City of Chicago response, arguing against the TRO:
Under the separation of powers doctrine, courts lack authority to guide or supervise legislative bodies or otherwise interfere with their exclusive functions. SeeIll.Const.Art.II,§ 1(1970)
(“The legislative, executive and judicial branches are separate. No branch shall exercise the powers properly belonging to the other.”)
Ironically, condominium associations lack separation of power, and that’s actually enabled by state law!
Sato’s reply to City of Chicago notes, among other arguments, that the City “exceeded its Home Rule Authority in enacting the COPO” in contradiction of state law. He also argues that the Ordinance violates substantive due process rights under the U.S. Constitution.
Ultimately, the Judge denied the request for TRO.
However, as a response to City Council’s abuse of its Home Rule powers, Rep. André Thapedi then introduced HB 4910, which basically stated that local governments cannot override certain state laws governing association-governed common interest communities.
Amends the Common Interest Community Association Act. Limits the concurrent exercise by units of local government of powers and functions exercised by the State with respect to amendments to the community instruments and accounting practices. Amends the Condominium Property Act. Limits the concurrent exercise by units of local government of powers and functions exercised by the State with respect to an association’s: budgeting practices; sale of property; notice requirements; contracts with board members; voting procedures; property improvement procedures; accounting practices; collection and sharing of records; amendment to the condominium instruments; and subdivision or combination of units. Effective immediately.
Read HB 4910
HB 4910 also stalled in the Rules Committee.
Although the City had threatened to file an order to dismiss Sato’s complaint, that never happened.
Instead, not long after Sato’s case was filed in Chancery Court, and HB 4910 was filed in the State House, Alderman Reilly had a partial change of heart, proposing an amendment to the COPO, which was ultimately enacted on May 26, 2018.
As you can see below, the amended Ordinance allows unit owners access to a membership roster of names, addresses, weighted voting interests, and ballots and proxies, as long as email addresses and phone numbers are redacted.
The issue of whether or not to provide all units owner access to emails and phone numbers of association members still remains controversial. At this point, Chicago’s Ordinance still differs from Illinois state law, which currently does consider email addresses and phone numbers to be part of a condo associations official records, accessible upon request of a unit owner.
This year’s legislative session is over, but next year, who knows if the controversy will continue?
In the meantime, Chicago condo owners can still request access to records of their associations. If the condo association fails to provide access to records, it will be subject to the City’s Penalty for Violation. See chicagocode.org/13-72-110/