MTCA bans recording of board meetings

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.

“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.

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

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.