Minutes of Executive Session

[Wild Dunes]

As I've shared in past posts, our HOA does things a bit differently from what is in RONR - and we're working on changes. In the meantime, we have a question on minutes of an executive session (ES). RONR 48:13 says minutes of an ES must be read and approved in ES. This is where our HOA has been doing things differently.

We have an Agenda for each monthly board meeting. If there is business to be conducted in ES, ES is listed on the Agenda as an Agenda item. The board moves into a small room to conduct the ES and when finished moves back out to the main room and votes on items that require a vote from the ES. The motion does not contain any confidential information. The HOA's policy for ES minutes approval: >the minutes, without any confidential information shared, are included on the next regular board meeting agenda along with the minutes of the past month's minutes > those minutes are (hopefully) approved.

If minutes are to be approved in ES only, at the next regular board meeting, we would be required to hold an ES simply to approve those minutes if there was no other ES business, and that would repeat month-after-month as there would be an ES and minutes would have to be taken and approved.  The  other option is to approve those minutes at the next ES which could be months' off.

Our Bylaws do not speak to this.

[Gary Novosielski]

On 3/3/2023 at 1:38 PM, Wild Dunes said:

If minutes are to be approved in ES only, at the next regular board meeting, we would be required to hold an ES simply to approve those minutes if there was no other ES business, and that would repeat month-after-month as there would be an ES and minutes would have to be taken and approved. 

No.

The paragraph you cited refers you to 9:27, where we learn:

"Reading and approval of the minutes of an executive session must take place only in executive session, unless that which would be reported in the minutes is not secret. When the minutes of an executive session must be considered for approval at an executive session held solely for that purpose, the brief minutes of the latter meeting are, or are assumed to be, approved by that meeting."

So you have two additional facts that work in your favor. 

• If the contents of the ES minutes themselves do not contain any confidential information, they can be approved in a regular session.  Since discussion is not properly included in the minutes, it may well be the case that nothing in the minutes of the session is actually confidential.  Since you come out of ES before voting, that leaves very little for the ES minutes to contain, except the motion to come out of ES.  So this does not appear to be much of a burden.
• The second rule above eliminates the concern over an infinite loop of minutes approval.

 

Edited March 3, 2023 at 06:51 PM by Gary Novosielski
punctuation.

[Wild Dunes]

Mr. Novosielski: I apologize, but I haven't figured out how to use the quote option. From your reply:

The paragraph you cited refers you to 9:27, where we learn:

"Reading and approval of the minutes of an executive session must take place only in executive session, unless that which would be reported in the minutes is not secret. When the minutes of an executive session must be considered for approval at an executive session held solely for that purpose, the brief minutes of the latter meeting are, or are assumed to be, approved by that meeting."

Clarification on the bolded line has been requested.  

[Atul Kapur]

The March meeting goes into executive session in order to do only one thing: The approval of the February meetings executive session. 

The minutes of March's executive session "are, or are assumed to be, approved by that [meaning the March] meeting."

The March executive session minutes just say: "The minutes of February's executive session were approved. "

[Josh Martin]

On 3/3/2023 at 12:38 PM, Wild Dunes said:

RONR 48:13 says minutes of an ES must be read and approved in ES.

There is a bit more to it than that. As the rule notes, this subject is discussed in greater detail in 9:26-27.

"Reading and approval of the minutes of an executive session must take place only in executive session, unless that which would be reported in the minutes is not secret. When the minutes of an executive session must be considered for approval at an executive session held solely for that purpose, the brief minutes of the latter meeting are, or are assumed to be, approved by that meeting. (For additional rules regarding access to minutes and other records, including those kept by boards and committees, that are protected by the secrecy of an executive session, see 47:36 and 49:17–19.)" RONR (12th ed.) 9:27, emphasis added

The purpose of approving the minutes in executive session is to avoid "spilling the beans" on confidential matters discussed in executive session. But it may well be (especially if the assembly is keeping its minutes in compliance with RONR) that there are no "secrets" in the minutes. In such a case, the assembly is free to approve the minutes in open session.

On 3/3/2023 at 12:38 PM, Wild Dunes said:

We have an Agenda for each monthly board meeting. If there is business to be conducted in ES, ES is listed on the Agenda as an Agenda item. The board moves into a small room to conduct the ES and when finished moves back out to the main room and votes on items that require a vote from the ES. The motion does not contain any confidential information. The HOA's policy for ES minutes approval: >the minutes, without any confidential information shared, are included on the next regular board meeting agenda along with the minutes of the past month's minutes > those minutes are (hopefully) approved.

Based on these facts, I am inclined to think the board is free to approve the minutes in open session. In fact, since it seems no actual business is conducted in executive session, I'm not sure minutes need to be taken of the executive session at all.

On 3/3/2023 at 12:38 PM, Wild Dunes said:

If minutes are to be approved in ES only, at the next regular board meeting, we would be required to hold an ES simply to approve those minutes if there was no other ES business, and that would repeat month-after-month as there would be an ES and minutes would have to be taken and approved.  The  other option is to approve those minutes at the next ES which could be months' off.

As I have noted above, I think that your board is free to continue its current practice, based upon the facts presented.

But even assuming that the board wishes to approve the minutes in executive session, RONR anticipates this problem and has rules to address it. If a meeting is held in executive session for the sole purpose of approving the minutes of a previous executive session, the assembly can approve the minutes of that executive session at the end of that session (because the minutes will be so brief that they can be written on the spot). RONR even notes that if the assembly fails to formally approve those minutes, they are "assumed to be" approved.

Alternatively, I would certainly think that for those minutes, "that which would be reported in the minutes is not secret." So the assembly could approve the minutes in open session.

[Gary Novosielski]

On 3/3/2023 at 4:17 PM, Wild Dunes said:

"...When the minutes of an executive session must be considered for approval at an executive session held solely for that purpose, the brief minutes of the latter meeting are, or are assumed to be, approved by that meeting." [9:27]

Clarification on the bolded line has been requested.  

It refers to an executive session that was called for the purpose of approving the minutes of a previous ES, and for no other business.  The minutes of this session will be very brief, saying only something like

"The minutes of the executive session of March 1st were approved as printed.  The assembly then came out of executive session."  

The rule says that those brief minutes of this second meeting can be approved at that very meeting, or can be assumed to be approved, provided the date is noted to be correct, which is the only logical correction possible.  But a case could be made that this rule is not really necessary, since this approval can reveal no secret information at all, and so the approval of the March 1st executive session could take place in regular session.

The point is that there is  no need to have an infinite series of executive sessions, each one doing nothing but approving the brief minutes of the session before, in a turtles-all-the-way-down situation, which is what your original question seemed to suggest.

[Wild Dunes]

My apology for the delay in replying to your responses. Thanks to each of you for your responses which have given us a much needed understanding of this issue.