Executive Session Meetings
Executive sessions of the board of directors are provided by statute so boards can address issues involving privileged information and matters of a private nature. Consequently, members do not have the right to attend executive sessions. Boards may go into executive session for the following matters:
- Legal issues. Boards may go into executive session to consider or discuss litigation.
- Formation of Contacts. Boards may consider matters relating to the formation of contracts with third parties.
- Disciplinary Hearings. Boards should always meet in executive session for disciplinary hearings. The accused member is entitled to attend the executive session for that portion of the meeting dealing with his or her hearing.
- Payment Plans. Boards may meet with members in executive session to discuss requests by delinquent homeowners for payment plans.
- Personnel issues. Personnel matters which include, but are not limited to, hiring, termination, raises, disciplinary matters, and performance reviews.
- Foreclosures. The decision to initiate foreclosure actions must be made only by the board of directors and may not be delegated to an agent of the association. The board must approve the decision to foreclose by a majority vote of the directors in executive session.
Executive session meetings can be held by any of the following methods:
- In Person. Directors can meet in person at a location permitted in the governing documents.
- Telephone – Video. Directors can meet via telephone or video conference.
- Unanimous Written Consent. A “unanimous written consent” may be used for emergency actions only.
Email meetings are prohibited.
As stated above, members do not have the right to attend executive session meetings. However, that does not mean the meetings are limited only to directors. Directors, managers, recording secretaries, the association’s attorney, members subject to disciplinary action as well as witnesses (but only for the portion of the meeting involving the disciplinary hearing), and others invited by the board (such as contractors bidding on a project) may attend an executive session meeting.
Unless otherwise stated in the governing documents, executive board meetings may be called by the chairman or president or any vice president or the secretary or any two directors. An emergency meeting of the board may be called by the president or by any two members of the board other than the president. Email discussion of director availability for the meeting as well as the date and time for the meeting is permitted. Scheduling discussions are not deemed “board meetings” and do not violate the Davis-Stirling Act.
Members must be provided notice of executive session meetings of the board. This is required regardless of anything to the contrary in an association’s governing documents.
If an executive session is to be held with a scheduled open meeting of the board, the notice of the executive session must be included in the open meeting’s four day notice and generally noted in the open meeting agenda.
If a non-emergency meetings is to be held solely in executive session, members must be given notice of the time and place of the meeting at least two (2) days prior to the meeting. If an association’s governing documents require a longer notice, the longer notice is required.
Notice of meetings must be posted in a prominent place or places in the common area and by mail to any owner who had requested notice by mail (at the address requested by the owner). In addition, notice may be given by mail, by delivery of the notice to each unit in the development, by newsletter or similar means of communication, or with the consent of the member, by email.
Notices of executive session meetings must contain an agenda for the meeting. Because executive sessions are confidential and topics are only generally noted in open meeting minutes, agenda descriptions should be brief and general in nature.
Boards must keep minutes of their executive session meetings and generally memorialize their sessions in the minutes of the next open meeting of the board.
Directors who violate the confidential nature of information gained in executive sessions are subject to censure, and personal liability for their conduct. Such violations are serious and can have great consequences.