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Subject: non disclosure required to be on BOD
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Author Messages
GaryJ5
(New York)

Posts:1


07/27/2020 5:58 PM  
Is it legal to require elected board members to sign a non disclosure agreement that includes anything talked about in the board meeting is confidential? How can elected BOD talk to those who elected them and talk about issues? This is in the state of Florida. The meetings are suppose to be open to members but not announced when they are. Ayone know about this and what to do?
KerryL1
(California)

Posts:7397


07/27/2020 6:11 PM  
Luckily, Gary, we have some good FL posters here.
GenoS
(Florida)

Posts:3925


07/27/2020 7:36 PM  
All board meetings in Florida have to be open to the homeowners (with a couple of exceptions for dealing with personnel issues and meetings with the attorney regarding pending litigation). The board shouldn't be conducting business outside of a board meeting, and with all members having the right to attend the board meetings, the purpose of an NDA would seem to be moot. I don't know of any legal opinions on the matter, but the first thing that crossed my mind when hearing about it was, "What are they trying to hide?"
SheliaH
(Indiana)

Posts:3358


07/27/2020 7:40 PM  
You'll have to check with an attorney on the legal issue - and if you're on the hoard, show him/her this non-disclosure form.

As a practical, I understand keeping the details of executive sessions confidential. Those should be rare as reserved for sensitive issues like discussing litigation with the association attorney, board member discipline of a CAR violation hearing. Othereise, I see no reason why a homeowner can't go to any board member and get complete and accurate information on association issues.

That's also why I think meetings should be open so people can hear the conversations about the decision. They don't have to agree, but listening to the proceedings is the best way to see people apply careful thought before voting if a board member can't exp!win any he or she took a position, that's a problem

GenoS
(Florida)

Posts:3925


07/27/2020 8:33 PM  
Also I think if the association's governing documents do not authorize the association to demand someone sign an NDA then they're not permitted to do so. The Florida Statutes clearly lay out the requirements to be eligible to serve on a condo or HOA's board of directors. There's nothing in those that would allow anyone to further restrict the eligibility of an owner to be on the board of directors.
GeorgeS21
(Florida)

Posts:2902


07/28/2020 6:06 AM  
Gary,

I can't follow well - Florida meetings are open, except for executive session which has specific limitations.

I would laugh at the mention of an NDA, and continue to execute my elected role.
AugustinD


Posts:3683


07/28/2020 6:32 AM  
Posted By GaryJ5 on 07/27/2020 5:58 PM
Is it legal to require elected board members to sign a non disclosure agreement that includes anything talked about in the board meeting is confidential? How can elected BOD talk to those who elected them and talk about issues? This is in the state of Florida. The meetings are suppose to be open to members but not announced when they are. Anyone know about this and what to do?
As others noted, executive session topics are confidential. Open meeting topics are not.

In my experience and also based on posts here, this is a common tactic of a board whose majority is incompetent and wants to make up the law and covenants as they go. Perhaps said board has an attorney willing to bill for nonsense like a non-disclosure agreement and create what is essentially a legal fiction about the lawfulness of an NDA. But to keep things moving along, I would sign it but note above my signature: "I will comply with the above to the extent that it is consistent with Florida law including the HOA's/condo's covenants."

I grant that at times, directors on some boards will go rogue and tell HOA members about confidential subjects that are truly confidential. E.g. a director's revealing the content of attorney-client privileged discussions between a board and the HOA attorney to a HOA member who is an adverse party on a particular issue with the board. Then I think a Board has a duty to use some strong language (and maybe more) to rein in the director.
AugustinD


Posts:3683


07/28/2020 6:34 AM  
Posted By GenoS on 07/27/2020 8:33 PM
Also I think if the association's governing documents do not authorize the association to demand someone sign an NDA then they're not permitted to do so. The Florida Statutes clearly lay out the requirements to be eligible to serve on a condo or HOA's board of directors. There's nothing in those that would allow anyone to further restrict the eligibility of an owner to be on the board of directors.
I think the above is well-argued and well-said.
AugustinD


Posts:3683


07/28/2020 7:09 AM  
Posted By GaryJ5 on 07/27/2020 5:58 PM
The meetings are suppose to be open to members but not announced when they are. Anyone know about this and what to do?
Is this a condominium (subject to Florida Statute 718)? Or a non-condominium (subject to Florida Statute 720)? Are you on the board?

Let's assume it is a condominium subject to Florida Statute 718. Let's assume the OP is a director on the board. First, were I in the OP's shoes, I would ask the Board to comply with FS 718.112 (2) (c) 1. . The latter states:

"Adequate notice of all board meetings, which must specifically identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting except in an emergency.
...
Upon notice to the unit owners, the board shall, by duly adopted rule, designate a specific location on the condominium property where all notices of board meetings must be posted. If there is no condominium property where notices can be posted, notices shall be mailed, delivered, or electronically transmitted to each unit owner at least 14 days before the meeting. ... "
[for brevity, snipped more that is relevant. See http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718.html

If the board argued about this, then I would ask the board to consult the HOA/condo attorney.

If the board refused to consult the HOA/condo attorney, then I would seek dispute resolution pursuant to FS 718.1255 (4). Open meetings are important enough that this is worth the battle.

Alternatively, and again if I were a director on this board, I would consider resigning and making the above demands as a mere member. In all communications with the board, I would cc the hoa/condo attorney perhaps until I was told to stop doing so. I would save all emails on the server (printouts or other means of retaining a record of emails are not acceptable in a court of law). I would send letters certified mail, return receipt requested.

If the OP's question concerns a non-condominium HOA, then FS 720 has similar sections on the topic of open meetings and dispute resolution.
JohnC46
(South Carolina)

Posts:9678


07/28/2020 8:32 AM  
Posted By GeorgeS21 on 07/28/2020 6:06 AM
Gary,

I can't follow well - Florida meetings are open, except for executive session which has specific limitations.

I would laugh at the mention of an NDA, and continue to execute my elected role.




I agree.
DavidF22
(New York)

Posts:57


07/28/2020 10:46 AM  
We had a board member who wanted us all to sign NDAs essentially preventing us from talking to residents about any community business. We tossed them back at him unsigned and had a good laugh. Yes, there are topics not for general discussion, such as deliberation over contracts. But my feeling is that any any board member advocating NDAs is not interested in transparency and wants to hide things from the people who pay the bills.
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