Closed (Executive Session) Board Meetings

Started by DarrellS • 19 replies • 1900 views

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DarrellS (Colorado)
Posts: 1

Posted:

In Colorado, CCIOA law states Board meetings are open to all HOA members. However, recent case law (Rywalt v. Writer Corp)states "the good faith acts of directors of profit or non-profit corporations which are within the powers of the corporation and within the exercise of an honest business judgment are valid." Thus, when Board discussions turn to CCR violations of individual homeowners (with the potential for adverse action) discretion dictates those discussions be limited to an Executive Session Any comment?

SusanW1 (Michigan)
Posts: 5,202

Posted:

I think it's a good idea for CERTAIN subjects to be discussed in Executive Session. Violations, disciplinary issues, past dues owed, personnel issues, legal cases, to name a few. Where names are discussed, and decisions made on violations, I think there needs to be some kind of decretion. In fact, discussing a homeowner's personal issues and names in front of a public audience could also result in trouble for the Board.

The problem is when Boards go into ES at the drop of the hat, ususally to get rid of the "audience" in attendance.

PeterB1 (Florida)
Posts: 257

Posted:

In Florida (with Sunshine laws) we are specifically prohibited from closing a meeting unless it involves a client attorney privilege - and the attorney MUST be present.

Looking at it another way, if the Board wants to consider a 'legal strategy' we must pay the hourly fee of an attorney to attend a meeting while we have a discussion. Otherwise our discussion would be an open meeting.

And who do you suppose wrote the laws???

DonnaS (Tennessee)
Posts: 5,671

Posted:

Peter,
You are correct in your statement about all meetings in Florida are required to be open "Except when the Board meets with their attorney in reguards to discussion about pending and ongoing litigations per the client/ attorney privledge.

However the Sunshine law has 2 different pages with statements re: open meetings. HOA's are exempt from the Sunshine requirement on open meetings as Statute 720 is what we are to follow with the EXCEPTION OF ANY MEETING WHERE THE HOA AND THE COUNTY ARE INVOLVED WITH DISCUSSIONS AND DECISIONS CONCERNING ZONING AND BUILDING ISSUES. P.S. A Philiadelphia lawyer wrote it

PeterB1 (Florida)
Posts: 257

Posted:

DonnaS,

Can you point out the paragraph referencing "ANY MEETING WHERE THE HOA AND THE COUNTY ARE INVOLVED WITH DISCUSSIONS"?

I really need to locate it.

Thanks.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Peter,
I have a 2005 copy so my page will not coincide with yours if you are refrencing this. Mine is page 5 and 7. but here it is----

. Homeowners' associations

The Sunshine Law does not generally apply to meetings of a homeowners' association board of directors. Inf. Op. to Fasano, June 7, 1996. Other statutes govern access to records and meetings of these associations. See, e.g., s. 720.303(2), F.S. (homeowners' association board of directors); s. 718.112(2)(c), F.S. (condominium board of administration); s. 719.106(1)(c), F.S. (cooperative board of administration); and s. 723.078(2)(c), F.S. (mobile home park homeowners' association board of directors). Cf., AGO 99-53 (an architectural review committee of a homeowners' association is subject to the Sunshine Law where that committee, pursuant to county ordinance, must review and approve applications for county building permits).

The last sentence is the exception rule to having all meetings open to the membership

SusanW1 (Michigan)
Posts: 5,202

Posted:

Donna -

just to clarify to see if I have this right.

The Sunshine Law does NOT generally apply to meetings of a homeowners' association board of directors.

Meaning: Board meetings are to be attended by Board members only, not open to general members. Other statutes govern access to records and meetings of these associations.

An architectural review committee of a homeowners' association is subject to the Sunshine Law where that committee, pursuant to county ordinance, must review and approve applications for county building permits.

Meaning: any board meeting where review and approval of applications for county building permits IS open to the public. (which would make sense since county building permits is public information, anyway)

Do I have those meanings correct?

DonnaS (Tennessee)
Posts: 5,671

Posted:

Susan,
No, Florida makes it difficult for those of you folks who do not have copies of our either State Statutes 720 (HOA's) and 718 (Condo's) which have very explicit laws on meetings and their restrictions and governances. They do them this way just to peeve off everyone who needs to follow them. But once you read them a few thousand times, they become very clear.

The sentence in there about ARCs is because that will be the entity in an association if and where any public parcipitation might occur, which then would allow for an open meeting to the community. Even outside of the membership. All HOA meetings are required to be open to the entire membership per S.S.720, including access to all association records, except where litigation and attorney/ client privledge occurs, minutes and and financial records.
Simple, yes???

KimB9 (Florida)
Posts: 11

Posted:

Hi Donna,

I have searched the discussion topics and can't find a direct answer to my question. I am the new Secretary of an HOA here in Florida. Recently, the new President set up a meeting with the CAM and the Board. I refused to attend because I interpret the Florida Statutes "A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business," to mean ANY association business. To me, that included a meeting with the CAM. The President says he disagrees. The concern I have is we have an immediate past president that is scrutinizing us like a hawk. Instead of holding our hands and helping to guide us, she's waiting to pounce and draw blood. She's already threatened to file a claim to the OD insurance and to file for receivership over minor issues. Please advise.

Thanks!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Kim,
I am not an attorney so I am just giving you MHO, according to what I know from the State Statutes and what you have written.

The meeting with your CAM was for what purpose? If it was to discuss his or her's job description and or other duties, then NO, it is not a Board meeting. BUT if you were discussing any association business, then YES, it is required to be posted 48 hours prior to the meeting and is OPEN to all of the membership.

The general membership does not need involvement in a meeting where the CAM is considered an employee of the association and office and management duties are outlined. Hopefully that is all that they were addressing.

As for the Board Cop, she needs to get over the threatening of your current Board. She must have lost at an election and cannot remove herself.

FYI, she as an individual cannot sue the Board as she will need 10% of the membership per a petition to advance with a suit against the Board. But that is why you have D.& O. insurance. And your Board and she would be required to go to Mediation. They would toss it out without some valid issues being accused of your Board.

BobS10 (Connecticut)
Posts: 39

Posted:

I have a dumb question, but here goes, when you are in executive session, do you continue to take minutes? If you do, are those minutes separate so as not to have to be divulged to everyone?
No hidden agenda or sarcasm here folks, I really just want to understand this.
And by the way, I am learning far more here than I would in a dozen board meetings.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Bob,
Yes, minutes of all meetings must be recorded, Executive meeting or not. They are not added to the regular meeting minutes but are filed with the association business. We do not have provisions for executive meetings in Florida. All of our meetings in Florida are required to be open to the membership excluding any meeting between the BOD and the association attorney, with regards to any litigation and legal matters of the association against a member . Those would be noted and written but not as minutes.

KimB9 (Florida)
Posts: 11

Posted:

Thanks for responding so quickly!

That's good news that ALL business is not considered a Board Meeting. I guess I was too literal in interpreting the law.

The meeting with the CAM was to go over Violation Notice Letters and their wording, procedures, signing signature cards, etc.

BTW, I love the term Board Cop! Any advice on how we can stop her? She'd be an excellent resource if she weren't so toxic. She's sent about a dozen violation requests in the past two weeks and asked the CAM to provide her with any communication they've had or will have with the Board. Not to sound paranoid, but she's looking for ammo to be used against us. Mind you, we've only been Board members since January 1, 2008!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Kim,
Is she asking to have information after a violation letter is sent? You said that she has sent requests and asks for communication they've had with the Board. Explain that a little clearer. As a regular member of the association, she is not privy to all communication between the Board and the CAM.

MAybe your Board needs to appoint her to head the "violations committee" Don't let her threats make your Board fear her or react out of anger at her. She is waiting for that. If I didn't know better, I would say that she is my former Master Board President. Some people just have a hard time letting go.

KimB9 (Florida)
Posts: 11

Posted:

She sent an email to the CAM yesterday requesting to be informed of any Board communications, meetings, phone conferences, etc., either past or future. I sent an email to the CAM (AFTER the CAM informed her of the meeting with the President and other Board member) stating that, "***** is no longer a Board member and is not entitled to that information." She's also asking the CAM what's happening to the violation request letters she's sent; how come nothing is being done. She won't let up!

BobS10 (Connecticut)
Posts: 39

Posted:

Kim, are you sure this isn't CT, sounds like my ex!

DonnaS (Tennessee)
Posts: 5,671

Posted:

HOLD YOUR GROUND WITH HER and hope that she runs out of steam soon. Know your rights as Board members and do not waiver from them but most importantly, you must deal with her as a unit. As long as an entire Board sticks to their goals and is unified , there is great strength in numbers. Good Luck!

SusanW1 (Michigan)
Posts: 5,202

Posted:

There's that "M" word again. (Meeting)

My suggestion is that the Board not use it unless it pertains to an actual meeting of the Board.

So you could have a work session, gathering, conference, assembly, working lunch, etc. - just don't call it a Meeting!

KimB9 (Florida)
Posts: 11

Posted:

No, not CT! You mean there's more like her out there??

KimB9 (Florida)
Posts: 11

Posted:

Thanks, Susan. I'll try to remember that. Good advice.
And, thanks, Donna. We've been silent and we'll try to remain patient.

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