Reader Questions - Executive Session Misused?

Mr. Richardson,

Members of our board mention discussions in executive session when they are discussing agenda items at board meetings. For instance, at a recent meeting the board tabled a matter relating to rules. The president said the matter would be discussed further in executive session. Also, three board members attend committee meetings. Two directors will be designated to participate with the committee and the third will not participate but just listen.

What subjects are allowed under Davis-Stirling in executive session? Also, should a majority of the board be attending committee meetings, even if one of them does not participate?

T.M., Canyon Lake

Dear T.M.,

Closed session is only permissible under Civil Code 4935(a) to discuss a very few items: litigation, paid personnel, contract negotiations, disciplinary and common area damage hearings, hearings re delinquency payment plans, lien foreclosures (Civil Code 5705(c)) and requests for accommodation of disabilities (required by Fair Housing law to be kept confidential). Anything else must be handled in open session – period. When a board handles other topics in closed session it not only violates the Open Meeting Act (Civil 4900-4955) but also violates the members’ trust.

As to committees, if a board majority attends a gathering in which association topics are discussed, that is a “board meeting” under Civil 4090(a). Even if the third director is silent, that committee meeting has become a board meeting and the Open Meeting Act applies. If a board majority needs to attend a committee’s meetings, why have the committee? Committees should support the board by helping share the load. When a majority of the board is attending anyway, then it is not helping.

Thanks for your question,
Kelly

Dear Kelly,

I’m a member of a condo board which addresses many issues in executive session that may not allowed by Davis-Stirling. Can a homeowner damage claim (caused by maintenance or defects) to their units be discussed in closed sessions or should they be addressed in open session? Must their privacy be protected?

S.F., Coronado

Dear S.F.,

Damage claims from a member must be in open session, except when litigation threats or legal advice is involved. If a member caused common area damage, such hearing under Civil 5855(b) must be in closed session if the owner requests it. However, don’t wait for the member to ask. If the board conducts a hearing regarding alleged negligent damage to common area caused by a homeowner, that hearing can and should be conducted in closed session, to protect member privacy.

Thanks,
Kelly

Dear Mr. Richardson,

Which subjects from an executive session can a board approve to be discussed at an open meeting?

T.H., San Diego

Dear T.H.,

Executive session topics are confidential for a reason. Except in case of a subpoena or court order, such information should be kept confidential. After a closed session discussion, the board is required by Civil 5935(e) to “generally note” in the minutes of the next open board meeting the executive action taken. That means, for example, “disciplinary hearing with homeowner” or “contract negotiation discussions,” without the specifics. This is important regarding foreclosure votes, since the appellate court in Diamond v. Superior Court in 2013 rejected an association’s foreclosure because the vote was not noted in the next open meeting minutes.

Best regards,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.