Q. We have recently found that a member of our co-op's board of directors had covertly taped the conversations during a board meeting and a board interview with a prospective purchaser. We have also learned that she has submitted this tape (without identifying names) to a city agency in conjunction with a research project she is involved with. She did not tell anyone else on the board that she was taping the meeting or planning to use the tape in a research study and did not ask, or receive any permission to do this. Is this legal? What are our options, and do you have any recommendations on how to handle this?
—Confidential in Cooper City
A. “There is no problem making an audio tape of a board meeting,” says attorney Robert Rubinstein of the West Palm Beach law firm of Becker & Poliakoff. “An owner does not have to obtain the permission or consent of the board or any person in order to tape record a board meeting. Florida Statutes, Section 719.106(1)(c), states: "Any unit owner may tape record or videotape meetings of the board of administration." Accordingly, there is nothing wrong with the owner "covertly" taping the board meeting. Since the director taping the meeting is also an owner, this right extends to the director. However, recording a board interview with a prospective purchaser may be another matter.
“If less than a quorum of the board was interviewing the prospective purchaser, that was not a board meeting and, therefore, the statute granting owners the right to record board meetings would not apply. Nevertheless, if the group of directors doing the interview was a committee assigned the duty to interview prospective purchasers, then owners do have the statutory right to record the committee meeting. Thus, if the statute does not apply, the director was prohibited from recording the interview without first obtaining the consent of every person being recorded. If the statute does apply, the director has the right to record the committee meeting, but the prospective purchaser is not part of the committee and not an owner. Therefore, it is questionable whether the director can record the prospective purchaser without that person's consent. I am not aware of any cases on point, but my personal opinion is that permission from the prospective purchaser is needed for recording that person because that person is not part of the committee and not an owner participating at the committee meeting.
“If an owner has legally recorded a board or committee meeting, that owner can do whatever that owner wants with the recording. The association cannot restrict, limit, or prohibit the owner in any manner concerning the recording. Further, the association has no liability for whatever an owner does with such a recording. For these reasons, there is nothing the association can do about the director giving the legally obtained recording to the city agency for a research project. If the director did not legally record the meeting, either because it was not a board meeting, was not a committee meeting, or permission from the prospective applicant was not obtained, the persons who were recorded without their permission can file criminal charges, although it is unknown whether the police or state attorney would bother to prosecute that case. The association could also fine the director, if the governing documents have a provision prohibiting unlawful conduct and if the fining/grievance committee determines, after a hearing that a fine should be levied.
“Even if the recording was legally obtained, there is something objectionable to a director concealing the act of recording the interview. The information obtained in connection with a sale of a unit is confidential. By concealing the recording, the director clearly felt she was doing something she should not be doing—otherwise, she would have announced she was making the recording. This lack of transparency and hidden agenda is contrary to a director's ethical obligations, even if it is not a breach of fiduciary duty. It would be appropriate for the other directors to ask this director to resign from the board and it would also be appropriate for owners to institute a recall of this director.” n