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RobertR1
(South Carolina)

Posts:2158

07/13/2008 6:11 AM
Executives sessions in Condos. Specific laws or correct procedures defining who can attend an Executive Session. Does the manager had the power of the board to judge an owners conflict. Can he/she attend and participate the session? If the manager is directed to collect information and maybe even act for the Board if necessary, does that, in turn, make him/her a member of the executive arm of the Condominium. If his testimony is rerquired does that make him a member of the executive arm, or would he be treated as another owner that was called before the executive arm, and after testimony, he would be excluded from the remainder of the session/ More to this question than meets the eye. Lots of opinions please and examples.

BrianB
(California)

Posts:1742

07/13/2008 7:14 AM
IMO, the answers lie in your by-laws. they should state the reasons for an Executive Session, and who attends. If they dont, I would say that the board officers are included, and everyone else is excluded until an invitation is given. I know some boards can't hold a meeting without a manager holding their hand/running it, and i personally think those boards should at least buck up enough to run an ES without babysitting. If a board cannot hold a session without professional help, then the "help" should absolutely do their job, and their job only: running the session. the moderator (that's what they are at that point) runs the meeting, and remains silent on issues, opinions, etc.. It could be tough to switch hats for a management company, but i think they must in order to preserve the integrity of the ES.

KirkW1
(Texas)

Posts:1145

07/13/2008 8:09 AM
First, it would depend on your state concerning applicability of laws on the subject. In Texas open meeting laws simply do not apply to HOAs. I suspect that most states are the same. Beyond that, the manager is the agent of the board. The manager often acts in the board's stead. But unless elected to the board, the manager is in no way a member of the board. Just the same, I can say that our city council often has the city manager included in executive sessions and they are subject to the open meeting laws. Now as a board member, I would be inclined to keep the manager in the room throughout the hearing. Partly because the manager should be well versed and have investigated as much as possible. The manager may be called upon for more information or to confirm/repudiate statements made by others. Part of a managers job is to understand the thoughts and ideas of the board members. The manager should learn the direction of the board and should generally have a good idea of how the board will respond based on past experience. Part of how the manager gets to this place is through being at the meetings (including executive session).

MaryA1
(Arizona)

Posts:2259

07/13/2008 2:11 PM
Posted By RobertR1 on 07/13/2008 6:11 AM Executives sessions in Condos. Specific laws or correct procedures defining who can attend an Executive Session. Does the manager had the power of the board to judge an owners conflict. Can he/she attend and participate the session? If the manager is directed to collect information and maybe even act for the Board if necessary, does that, in turn, make him/her a member of the executive arm of the Condominium. If his testimony is rerquired does that make him a member of the executive arm, or would he be treated as another owner that was called before the executive arm, and after testimony, he would be excluded from the remainder of the session/ More to this question than meets the eye. Lots of opinions please and examples. Robert, I don't know that a state law, or even the assn's gov. docs., would address who can attend an executive (closed) session of the board. The manager may gather info for the board and he/she may sit in on meetings, whether open or executive sessions. However, the manager should never act for the board and is not a member of the board by virtue of his position as manager. Some assn's do allow non-members to be members of the board, but most do require board members to be members of the assn. You asked: "Does the manager had the power of the board to judge an owners conflict." Most managers have the authority to notice CCRs violations and send violation notices accordingly. However, the manager does not have the "power" to make decisions in a dispute between members and the board. Not sure if this answers your question.

RobertR1
(South Carolina)

Posts:2158

07/14/2008 6:04 AM
Brian, Kirk and MaryA, The rest of the story behind this is: If your manager has no "power", does he have the right to be present during ES? An association is really a governorship by owners. They hold the vote and the Power. Using that as a guideline, I wonder if you can have ES in a closed setting. Certainly the Manager has no standing in a ES. I suppose there could be a case that a hired gun can attend and his voice carry weight, I'm not sure. Even though we are covered in part by corporation laws, we are also given legal standing as an association with each member holding equal vote. Personally as a voting member of my association, I am inclined to think it may not be a problem with the ES, it is a problem with what is taken under ES. Don't I have the right to know if my neighbor is deliquent in his fees to OUR association. I certainly have more invested and more right to know that than the manager. His right to know is dictated by his job, it sure carry no weight. We, our association assigns the manager the job of negoiation to, say, a deliquent owner or a owner that has violated a covennt. He then come back to the Board, and they go into ES to see if they agree what the manager has done. This all don't sound right. It sounds more right if ES was used properly we may not even go there but once a year, if at that. Also, my observations seen to make me conclude, that there is seldom any decisions announced after a ES. I think I understand, unless a decision is made and a vote taken after the meeting, no one has a clue about what is said. Of course this is just a smart way for the Board to avoid putting themselves under the gun legally. That may also be true, but if the whole thing is not Government behind closed doors with no accountability, I don't know what is. Also, think on this one. Suppose this issue is about a conflict between two owners and in part involve the Real property. Then suppose all this rigamarow goes to ES and no decision is announce. Now you and I know some compromise is reached (decision). Now one or both of the contestants want this in the public domain. The Board can not censor them and place a gag order on them, even if they went to a judge, what could they say. I want a Gag Order on these people to keep them from talking about something that was talked about and no decision was reached. Crazy to me.

MaryA1
(Arizona)

Posts:2259

07/14/2008 11:28 AM
Robert, As I see it, your concerns about your manager really have nothing to do with whether a meeting is held in the open or in an executive session. The problem, as I see it from what you have offered, is that the manager is being allowed to make decisions on his own -- with no input from the board. Then, after the fact, the board let's him know if he did the right thing? That, to me, is really stupid! (Sorry couldn't think of a better adjective!) The way things should be done is not always the way things are done. In the best of worlds, the board would instruct the manager to follow the CCRs in deciding what constitutes a violation. The board should be able to trust the manager to send the violation notice w/o their prior approval. These violation notices should be discussed in an executive (closed) session of the board. Of course the manager should be present. Even though he isn't a board member, he is, in effect, an adjunct of the board. If a member disputes a violation notice recieved, then that member would also be present at the executive session board meeting. Some states have laws outlining what can and cannot be discussed in an executive session and whether or not actions can be taken; other states are silent on this. Depending upon what your state HOA statutes say (and your gov. docs.) actions may or may not be allowed to be taken in an executive session. While I do believe each member of the association has a right to know how many delinquencies there are from month to month, I do not believe they have the right to know the names of those who are delinquent. I regard this as confidential information. What matter does it make who is delinquent? What matters is how many delinquencies there are and what the board is doing about it. Also in the best of worlds, the board would communicate with their members. Some do; but far too many do not! Sounds like your board is in the latter category. This only causes members to speculate on their actions and perceive that they "must" be doing something wrong since they don't want to tell us anything. Of course this isn't always the case, but it is a result of lack of communication.

KirkW1
(Texas)

Posts:1145

07/14/2008 9:12 PM
First, I would think that often the manager would be invited into ES. That is the basis for the manger being present. The board certainly has all authority to meet without the manager. As to the collection thing, our documents specifically state, that this will be done in ES. And no, I don't think the membership at large has a right to know who is affected. I know I don't want to violate any privacy rights of members. Our management has quite specific guidelines on what they may negotiate with the HOs regarding delinquent accounts. But they always send the final decision to the board. I would imagine partly to protect themselves. This way they can't be accused of mismanagement of our funds. The only dispute I can see the BOD being involved in is a CC&R dispute. To this end, I would certainly have the manager present as we pay the manager to gather information. And if we need something verified or repudiated that would fall to the manager to look things up. All of us on my BOD have full time jobs and we pay the management company to deal with this stuff. I would consider the manager not a hired gun, but rather the administrative assistant. We pay them to be available to talk to the owners, check for violations, and research information. And no, we don't always agree with what our manager (or her boss) has to say.

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