By Deborah Goonan, Independent American Communities,
Chicago condo association orders owner to ‘cease and desist’ public posting of recorded board meetings
Readers might recall that Brian Connolly, a Chicago condo owner, recently scored a legal victory, when an Appellate court upheld his First Amendment rights at 111 East Chestnut Condominium.
But the battle for free speech in his community rages on.
Last May, 111 East Chestnut sued Connolly, claiming he has filed numerous ‘frivolous’ lawsuits and public complaints against his condo association. The lawsuit also accuses the homeowner, and his partner, Victoria Valentine, of harassing the condo board.
For several years, Connolly has maintained an unofficial website for his condo association. There, the outspoken homeowner occasionally posts his opinions about the management of his community.
Not surprisingly, condo board members disagree with almost every critical word he writes about them.
Much to the condo board’s dismay, however, the association can’t do much about it.
According to Illinois statute — recently upheld in Brian Connolly v. Anthony Milazzo, Mike Fish, Serap Brush, and Glenn Greene — a condo association in Illinois cannot stop owners from exercising their free speech rights.
Specifically, Illinois Condominium Statute 765, ILSC 605/1 section 18.4 h, reads as follows:
Illinois 765 ILCS 605/1 18.4 h
…no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution including, but not limited to, the free exercise of religion, nor may any rules or regulations conflict with the provisions of this Act or the condominium instruments. No rule or regulation shall prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.
Board fights against free speech
Incidentally, because of their great displeasure with the Appellate Court’s ruling, 111 East Chestnut is now petitioning the Illinois Supreme Court, asking for a reversal on its support of free speech in condominium associations.
The Association maintains that HOA-governed communities are non-governmental entities, and need not be held to the constraints of the U.S. or state Constitutions.
And recently, the condo board enacted a rule against publicly posting information about meetings. The enforceability of that rule remains questionable.
Posting audio recordings of condo meetings
As is common following any HOA lawsuit, the internal political battle continues between Connolly and his association. The latest point of contention involves Connolly’s habit of posting audio recordings of condo board meetings on his website.
Backed by their attorney, Diane J. Silverberg of Kovitz Shifrin Nesbit, 111 East Chestnut Condo Association is asking the court to stop Connolly from posting ‘private’ information on his publicly accessible website.
The condo association apparently believes that, as a private, non-governmental organization, it is only obligated to share meeting minutes with current owners and members of the association.
But Connolly disagrees.
How do you define ‘public?’
In his notes in reference to the July 25, 2019, board meeting at 111 East Chestnut, Connolly notes, “The board presently makes meeting minutes available online and free to anyone (i.e. including non-members) at Homewisedocs.com. That’s been the case since about February 2014.”
The homeowner says he’s been recording meeting minutes — as permitted by Illinois Condominium Property Act (ICPA) — since November 2018. Each month, Connolly posted his recordings to his website.
But in early May, the association issued a ‘cease and desist’ order, insisting that he take down the recordings, or limit access to condo owners only.
Public disclosure required for buyers
Connolly brings up an interesting point about Homewise Docs.
It’s an online document order system that allows a member of the condo buying public to purchase a copy of disclosure documents from the condo association.
Available documents include meeting minutes or recordings of meetings by the HOA.
Additionally, board-enacted rules that are filed with the County Records office are also part of a condo association’s official governing documents. By state law, condo rules are also public record.
So why can’t a condo meeting that discusses adoption of those rules — which includes a board vote — be public record, too?
Why is the condo association’s attorney advising the board that they have the right to keep meeting minutes/recordings open only to owners and prospective buyers?
Is the “HOA/condo association is a private business/corporation” argument a valid legal basis for their opinion?
As Attorney Norm Lerum pointed out in the Connolly and Boucher cases involving 111 East Chestnut — condo associations are creatures of statute. They aren’t private clubs, and they aren’t pure corporations. Lerum and some other legal experts argue that many HOA-governing bodies function as de facto state actors.
Disclosure: in the public interest
Constitutional issues aside, even if the courts avoid acknowledging the quasi-governmental status of most residential condo associations, public disclosure of official corporate actions is in the public interest.
What better way for housing consumers to evaluate the nature of a community, than by reviewing discussions and outcomes of board member or homeowner meetings?
That’s why Illinois statute says that certain information about an association must be made available as public record and made part of an official seller disclosure. The list of required disclosures includes meeting minutes and anything pertaining to governing documents — including board enacted rules.
In this case, the condo board didn’t record their recent meetings. I suspect that they avoid doing so, now that the court sided with Boucher when they ruled that an audio recording of a meeting serves the purpose of minutes.
The truth is, some HOA attorneys advise condo boards to keep written minutes brief, and to avoid recording every word spoken at each meeting. It’s one way for HOA, condo, and co-op boards to avoid legal trouble in the future, should meeting minutes or recordings be subpoenaed.
But, as Connolly notes, Illinois statute allows owners to record board meetings. And there’s nothing in the law that limits the rights of owners to share knowledge they gain in those meetings with non-members or anyone outside their community.
Accusations of harassment
In addition to a fight for free speech in HOAville, U.S.A., the most recent lawsuit filed against Connolly bears deeper significance.
It highlights a growing trend I’ve observed across the country, where HOA boards routinely accuse diligent homeowners of ‘harassing’ the board or manager, simply because they challenge the current board or ask too many uncomfortable questions.
I’ve heard from many homeowners across the country in very similar HOA disputes. It’s not just a problem in Illinois.
It certainly appears the HOA industry, led by certain prominent CAI-member attorneys, is deliberately blurring the lines between legitimate criticism of HOA governance or management practices and “harassment” of community leaders.
And, as long as the industry trade group can hide behind the corporate veil, they think their client HOA boards can get away with limiting free speech by accusing critics of being nuisances or bullies.
But, let’s recall some basic U.S. history.
The founders of this great country wrote the Constitution and its Bill of Rights to prevent oppression by arrogant or corrupt leaders. It was regarded as the best way to keep government honest.
Then, several decades ago, local governments decided to delegate code enforcement, communal housing, and community infrastructure maintenance to private HOAs.
When the HOA industry asked for government powers, such as the right to impose fines or foreclose on assessment liens, they were freely given.
In my opinion, it’s time to consider revoking those powers, in order to prevent further HOA abuse.
Responsible, fair-minded government leaders must consider: How long will state laws allow HOA-governed communities to skirt Constitutional law, practically inviting dictatorial and unaccountable governance of common interest communities? ♦
Gold Coast condo association sues former board member, claiming ‘frivolous’ complaints,
By Steven Dahlman, LoopNorth News (20-May-19)