Reader Questions - Executive Session: Used or Abused?

Dear Sir,

You have mentioned the open meeting law. You still have not addressed the board going into secret meetings called executive sessions. These meetings are attended by board members only after every one else has been sent home. Our board has been doing it for years.

R.P, Anaheim

Dear R.P.,

Closed or “executive” session is an important tool, protecting certain very sensitive subjects which would damage the HOA or certain homeowners if discussed openly. Closed sessions are specifically authorized by Civil Code 4935. If closed sessions are used for purposes other than specifically authorized, a board violates both the Open Meeting Act (Civil 4900-4955) and the community members’ trust.

Thanks,
Kelly

Hello Mr. Richardson,

The board is continuously discussing paint shades, lobby improvements, new fencing, revoking the no pets policy, whatever topic, in executive session behind closed doors. Is this correct or is there something that prohibits what they are doing?

T.H., Pacific Beach

Dear T.H.,

Only very limited and specified topics may be discussed in closed session, per Civil Code 4935 – Personnel decisions (meaning questions regarding HOA employees); litigation (or threatened litigation and attorney advice about it); disciplinary or common area damage reimbursement hearings; discussions of homeowner delinquency payment plans; assessment foreclosure votes; and formation of contracts (i.e., contract negotiations).

Regards,
Kelly

Dear Kelly,

I have a question about what is/is not allowed in executive sessions. I thought personnel matters and discussions with attorneys were the two major items generally allowed for executive session discussions. Is that correct or am I off base? What are the general rules as to what is allowed to be kept confidential (not shared with members) in executive sessions and what is deemed to be OK to discuss after an executive session? Does a general session vote need to be taken on items discussed in executive sessions?

G.K., Rancho Bernardo

Dear G.K.,

Conversations with association attorneys must be kept confidential to preserve the attorney client privilege. Personnel decisions also must be kept confidential and are also proper for closed session, but most associations do not have “personnel,” since they have no employees.

So long as the board votes only on items properly within closed session, no further membership vote is needed. However, if a board mistakenly handles business in closed session, it should be promptly disclosed in an open meeting, with a motion to ratify the mistaken action.

Whether the issue is personnel, attorney advice, or other of the proper closed session topics, it is critical that directors protect the confidential information and not disclose it outside the board. Many associations require the directors annually sign a confidentiality promise, to remind them of that important responsibility.

Thanks for your questions,
Kelly

Kelly Richardson,
Our HOA board agendas (executive and open) are posted in a common place for all to see. One of the executive agenda items is the approval of the previous meeting minutes for both the executive and open sessions. Why would the board approve the previous open meeting minutes in executive session? Is that “legal” or is that just bad business practice? 
Thank you,

J.M., San Diego

Dear J.M.,

Approval of open session minutes should be on the open board agenda, and approved (probably on the consent calendar) only in the open session.

Thanks,
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®.