Understanding Executive Session of HOA Board of Directors

[Wild Dunes]

Per our state statutes for planned communities associations, meetings of the board of directors shall be open to owners, except that at the discretion of the board, the board may close the meeting to owners other than board members and meet in executive session to discuss private or sensitive topics which are listed as: 

1. Consultation with legal counsel;

2. Personnel matters, including salary negotiations and employee discipline

3. Negotiation of third party contracts; and

4. Discussion of delinquent assessments.

Our Bylaws do not speak to Executive Sessions (ES).

We do have an article in our Bylaws that states : The current edition of Robert’s Rules of Order Newly Revised shall govern the proceedings of the Corporation in all cases not provided for in these Bylaws.

Other sources such as the Community Association Institute (CAI) states: Board members are not to reveal to any owner, resident, or other third party, the discussions decisions and comments made at any meeting of the board held in ES.

We are attempting to compose an explanation of ES for the board’s understanding and guidance, and also to members of our HOA who do not understand the confidentiality of ES.  Questions or concerns are:

Situations – can they be under the umbrella of the topics provided by the state? Examples:

1. A board member violates the rule of confidentiality. If that violation involved sharing private information e.g. on an employee, it could be discussed under 2. Personnel matters. But what if the information shared is sensitive or private but does not fall into one of the categories listed by the state statutes?

2. Can discussion of a possible legal issue be discussed to determine if it should be referred to legal counsel?

Thank you.

 

[rulesasker]

Robert's Rules allows the board to decide when to go into executive session. But those statues overrule Robert's Rules, so you would be limited to that list. Interpreting your state's statutes is outside the scope of this forum.

[Gary Novosielski]

On 12/18/2022 at 2:19 PM, Wild Dunes said:

Per our state statutes for planned communities associations, meetings of the board of directors shall be open to owners, except that at the discretion of the board, the board may close the meeting to owners other than board members and meet in executive session to discuss private or sensitive topics which are listed as: 

1. Consultation with legal counsel;

2. Personnel matters, including salary negotiations and employee discipline

3. Negotiation of third party contracts; and

4. Discussion of delinquent assessments.

Our Bylaws do not speak to Executive Sessions (ES).

We do have an article in our Bylaws that states : The current edition of Robert’s Rules of Order Newly Revised shall govern the proceedings of the Corporation in all cases not provided for in these Bylaws.

Other sources such as the Community Association Institute (CAI) states: Board members are not to reveal to any owner, resident, or other third party, the discussions decisions and comments made at any meeting of the board held in ES.

We are attempting to compose an explanation of ES for the board’s understanding and guidance, and also to members of our HOA who do not understand the confidentiality of ES.  Questions or concerns are:

Situations – can they be under the umbrella of the topics provided by the state? Examples:

1. A board member violates the rule of confidentiality. If that violation involved sharing private information e.g. on an employee, it could be discussed under 2. Personnel matters. But what if the information shared is sensitive or private but does not fall into one of the categories listed by the state statutes?

2. Can discussion of a possible legal issue be discussed to determine if it should be referred to legal counsel?

Thank you.

 

I am not a lawyer, and this is not legal advice:

1. If your paraphrase is correct, the state intends to limit the reasons why the board may go into executive session to those specific items listed.  This is not unusual.  Sometimes the statute will state that the motion to go into executive session must include the reason(s) from that list, which would be recorded in the non-secret minutes.  In any case, no discussion apart from those items would be in order during that executive session.  This is a departure from the rules in RONR, which allow any assembly to go into executive session at any time for any reason.  But your state regulations supersede those rules. 

2.  The argument could be made that discussion of legal matters which potentially might need the advice of counsel, yet are not covered by 2, 3, or 4, should be allowed, but that does not appear to be on the list, so I won't be the one making that argument.  In my home state, the equivalent regulations do mention matters that are or may become the subject of litigation, but you'll have to consult your local legal eagles to see if that's either in the law, or has been adjudicated, in your state.

[puzzling]

maybe a suggestion 

The rules only seem to apply to board of directors meetings, you can for any reason hold an membership meeting in executive session.

(so the members are informed but they cannot share it with non members)

[Richard Brown]

On 12/19/2022 at 2:54 AM, puzzling said:

he rules only seem to apply to board of directors meetings, you can for any reason hold an membership meeting in executive session.

I agree, unless there is also a statute regarding when a membership meeting may go into executive session.

On 12/19/2022 at 2:54 AM, puzzling said:

(so the members are informed but they cannot share it with non members)

That is true unless the membership votes to lift the secrecy of the executive session as to some or all of the matters discussed.