Executive session help

Started by RobertR1 • 23 replies • 1769 views

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RobertR1 (South Carolina)
Posts: 5,164

Posted:

I know this has been discussed ad naseum but set me straight.

When an executive session is announced, a purpose has to be entered into the minutes?

During an executive session if any subject not on the announcement is raised, this subject has to be reported in minutes?

If any decisions are reached by the Board these decisions must be noted upon closure of executive session when the regular meeting is reconvened, this would include the fact no decisions had been reached regarding (whatever)??

When you re-convenue the meeting there must be a report made and included in the general meeting minutes.??

I just finished reading my BOD minutes of last meeting.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Robert,

For a discussion on parliamentary procedures relating to executive sessions you might refer to Robert's Rules, 10th ed., pages 92-93, 292, 222, 619, 625, 630, 638, and 640.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

I all depends upon what your bylaws say and if there is a state law addressing closed sessions. IMO, the following would be the preferred procedure but it may not be the required procedure:

1) the board announces in the open session they are adjouring into a closed session for the purpose of ----

2) minutes of the executive session are taken to report all discussion and any actions taken. These minutes are confidential and are not distributed to the members.

3) a report of the actions taken in executive session (omitting any confidential info) are reported in the next open session

AZ law does not address the procedure for holding a closed session, only what topics may be considered is addressed.

SusanW1 (Michigan)
Posts: 5,202

Posted:

I believe that a motion is made to enter into ES. And the purpose is stated, i.e. to discuss litigation, employee contracts, disciplinary issues, etc. The time of the session is noted in the regular minutes, since the regular meeting will start again when the ES is ended.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Thanks for the help.

Let me add, as far as I know, Robert's rules are not commonly mentioned in the CC&R's, other than maybe as a guideline. We use Robert's simply as a way to sort of stay on the general direction. In an conflict or different views we will refer to it and abide by the general tone of the rules. But, I think ES call for a formal procedure to follow. We don't do that, it changes with who is writing the minutes I think. I will bring this to the Boards attention and since we now have an approachable board I think they will consider my objections to the latest procedure as printed in the minutes. There seems to always be an effort to over dramatize the ES. Without citing examples I would say that the ES is used too often out of timidness about whether the board is going to make a mistake than the real reason to discuss confidential material. I also don't think the salary of an empyoyee is fodder for the ES, but more a discussion to be held by committee with recomendations to the board. What is in someone's file, owner or employee is confidential but to record salaries in a financial and not discuss how you arrived at those figures is just plain timidness, IMHO.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

IAW the AZ open meeting law, discussion of an employee's personal, health or financial info alsong with matters relating to job performance and compensation is cause for an executive session. I think you will also find that city councils do not discuss this info in a public meeting.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By SusanW1 on 11/30/2008 1:10 PM
I believe that a motion is made to enter into ES. And the purpose is stated, i.e. to discuss litigation, employee contracts, disciplinary issues, etc. The time of the session is noted in the regular minutes, since the regular meeting will start again when the ES is ended.

Susan,

Not all boards reconvene the open meeting after meeting in a closed session. In fact, I would venture to say that would be a rare occurence. Some boards hold their closed session before the open session and others hold it at the end. My assn holds the closed session immediately after adjourning the open session. The fact that a closed meeting was held is not even mentioned in the open session minutes. Separate minutes are taken during the closed session showing the beginning and ending time.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Any minutes taken during an ES are not for general publication. I am not suggesting the bits and pieces of a contract with an employee be discussed, just that a discussion be noted and and any dicision be noted.I would like for someone to tell how we can publish for general information the salaries of all the Civil Servants in the government but we hem and Haw about publishing the total compensation for a manager of an association. If fact, the manager attends the ES session to discuss his compensation. Also he attends any other ES as far as I know. There are a lot of things about associations that to me don't make common sense. If an expert is required to verify a specific in a closed session he is invited to attend. He is not sworn to secrecy nor are board members and I know of no LAW that says they can't discuss what goes on. But, because some feel they could get in a bind they hide behind the veil of ES. I have no problem with an ES being held and no problem with a confidentiality rule and can see why at times this is necessary, but be reasonable.
How much would you want to bet that all associations keep on file minutes of ES?

SusanW1 (Michigan)
Posts: 5,202

Posted:

Robert!! What is your point?

You said: "He is not sworn to secrecy nor are board members and I know of no LAW that says they can't discuss what goes on"

That's the whole reason to go into ES. Members are NOT to discuss the proceeding details and discussions. To do so would be reason for removal from either a job or from the board.

The decision that comes out of the ES will be revealed in a motion that is brought before the board at a regular meeting. Then you will be able to know what went on in the ES (which I think is your issue)

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Susan,
Show me a LAW that is concerned with someone discussing what goes on in ES. Show me a LAW that any Board Member swears to not discus anything that is said in ES. Show me a LAW that requires all members to agree on any decision made it ES.

Do I think all these things are good things, all but the last. Do I think the Board should hold their own council? Yes I do. Do I approve of need for confidentiality, yes I do.

Now let me ask you a question? Do you think this kind of restriction (not Laws) that Board impose on themselves are consistent? Are the require for confidentiality the same for each Board? Is the decision to withhold information made by the Board or by the President or does it vary from one Board to another?
As Dr Phil says, I didn't just fall off the turnip wagon, I know this procedure is abused, ignored and selectively used to CYA more than it is used for legitimate purposes.

I am not pointing accusitory fingers at any Board members and certainly not mine, because I know they abuse the intend of the ES, they also refuse to report actions in ES, I also know that the selection, appopintment of new board members does not always end up productively and given the numbers old Board members that past through our doors, there is no way any control of all these restrictions are possible.
Finally, this part of our system is flawed and if for no other reason than that, it should not be used for other purposes. It should be consistantly managed and reported in such a way that no one would have to imagine what was discussed and why the reports don't reflect that. In my opionion, this little item speaks volumes of the Boards integrity. I am not questioning the Boards integrity because I won't know what I am referring to, that is a matter for the Board to grapple with.

Do I care enough to go to war about it? No I don't, but I care enough to use these little ES arrows to question some other action I don't feel is proper.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Robert,

The current discussion is why I suggested that you check Robert's Rules. When you play cards, or any other game, you play by a set of rules. Often, people have slight variations in the way they play a game. When you can't agree, you need to turn to some sort of rule book. There you will find the standard or suggested rules, and you can perhaps agree on a variation from that point.

I'm not suggesting that you must abide by Robert's Rules, and of course, your governing documents and state laws control whether or not you can go into ES. They may even prescribe a specific procedure, although likely not since there already is one.

I believe in your original post you asked several questions pertaining to executive sessions. I suggested you refer to Robert's Rules because there you will find the answers to your questions according to what is considered to be the standard or accepted procedure. What your board actually does is up to you, but at least you will know how it is supposed to be done in standard practice as a starting point. If you don't own a copy, I'm sure your local library has one and it likely doesn't circulate so it should always be there. Pages 92-93 define what an executive session is and doesn't discuss formal procedural issues. It would probably be a violation of copyright for me to quote the entire section here, but I will quote the first sentence:

"An executive session in general parliamentary usage has come to mean any meeting of a deliberative assembly, or a portion of a meeting, at which the proceedings are secret."

The remainder discusses who may and who may not attend, what you do with the minutes, motion to go into ES, what may or may not be discussed outside of ES and so forth.

The suggestion that the rules for ES may vary from one board to another suggestd to me that each board makes up its own rules as it goes along. That should never be. The rules should be the same from one board to another for consistency. I would suggest that if the board doesn't want to follow something like Robert's Rules, that they draft their own rules for ES, write them down (probably would take no more than a page or two), and then adopt them by resolution.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Bruce,
Your logic is understandable and your context is clear. I don't know that I have anything in opposition to your conclusions, except, in the real world, somethings don't make it through the translation.
The whole process of ES just doesn't seem to work very well when the fox is watching the hen house. And you will admit there is a little Fox in nearly all organizations like this. I am sure you have noticed that most complains by home owners that reach the Board's ears are personal agendas, such as "painting my door because I want to put my place on the market." Now this kind of pervasive motivation supplants the honest motive of "what's best for the whole" and that should be tattooed on new owners forehead, speaking of condo's.

My beef with ES is not ES, it is the manmipulation of the process to go around something a board does not want to address in an open forum. And I sure don't manifest perfection in my daily life so I can't expect perfect out of others. But I have also developed into sort of a watch dog (self appointed) and for whatever reason am always ready to nip at the heels of Board members. I am not to the point I hate everyone, I don't, it's just seems there are times when it is just as easy to face the music than cover it up with political dances.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Robert,

I think that's known as "picking your battles." I agree, there are times when you have to do that.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

I truly understand what you are saying. The problem, as I see it, is that your gov. docs. do not outline the procedure for conducting an executive session nor do they state the reasons for holding one. To compound that problem, is the the fact the SC does not have an HOA law addressing executive session. Brian has a good idea in suggesting the board draft a resolution outlining the procedure and the specific topics which warrant an executive session. Perhaps you should make this suggestion and also volunteer to serve on a committee to draft the resolution. FYI, AZ law only addresses the topics which can be discussed in executive session:

"Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:

1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.

2. Pending or contemplated litigation.

3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association."

IMO, the procedure for holding an executive session should be as follows:

1) At the close of an open session a motion is made to adjourn into a closed session.
2) Only topics confidental in nature can be discussed during a closed session. Note "discussed"!!
3) Minutes taken at a closed session shall remain confidential and only given to members of the board.
4) Action can be taken at the next regularly scheduled open session on any issue discussed in a closed session, except for legal matters.
5) Regarding legal matters, if litigation is pending or contemplated, action can be taked in a closed session, for purposes of protecting the client/attorney privilege. (See #1 above)

The PM of our assn attaches a disclaimer to the front of the executive session report (minutes) which I think is a good idea. Here's how it reads:

"The information contained in this report is proprietary and confidential, and is the exclusive property of the ---HOA. If you are not the intended recipient, please be advised that you are legally prohibited from retaining, using, copying, distributing or otherwise disclosing this information in any manner.

"If you have received this report or any of its contents in error, please return it to the attention of the ---HOA at the following address. Or, pelase contact (mgmt co address) and arrangements will be made to retrieve the report."

RobertR1 (South Carolina)
Posts: 5,164

Posted:

MaryA,
Thanks for all this information. I am certainly going to keep this available as a reference to demostratree the are better ways of doing things than the way we do them in spite of our boards tendency to:
a. Think that if no one but me is addressing the issue, there is no problem (comes with me having been around a long time)

b. No harm no foul posture. (comes when apathy over the years of homeowners results in the board believing that because they do it, that makes it right.)

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

Sadly, methinks your board doesn't think any differently than many, many others out there. With your tenacity, I'm sure it will only be a matter of time b/4 they see the light. Good luck!

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Thank you Mary, I hope I can help.
One other important fact I have learned: None of this is life or death, it can open up some new friendships but never should should it lead to making enemies. I don't mean you should not be without passion but keep your perspective and sense of humor.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Robert - unless you have some "FACTS" to go with your complaint, then you should assume that the board is following the only procedures it can. there MUST be come kind of option for boards to go into a private meeting to discuss private issues.

Was the reason for the going into the ES announced?

If it was, is it for a reasonable (defined by many posts above) reason?

Those are the real questions.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

I totally agree with your philosophy! :-)

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Susan,
The reason for going to ES was not in the minutes and as far as I can determine was not announced at the meeting. Nor was any reference made to the end of ES or any announcement that any action was taken.

I don't have a whole lot of problems with this lame duck board and feel things will be better when the Board is completely changed. The president will be leaving and although he presides and you can blame this activity on him, I am disappointed that the new members didn't call him on this oversight. But, as I said, no big deal as I have no reason to believe that nothing underhanded is happening.

If this happens in the future I will question the Board, old or new.

BelindaK1 (Florida)
Posts: 2

Posted:

Exec Sessions are used for personnel matters. Would this also include discussion on wage increases for employees since it is a financial matter that affects the company long term or should wage increases be discussed at a board meeting?

CarolR11 (Colorado)
Posts: 2,563

Posted:

We discuss staff wage increases only in executive session as they are personnel matters. In CA, personnel matters are in executive session. If you want ot know more, it's better to start a new thread with a short but clear Subject line.

TimB4 (Tennessee)
Posts: 21,046

Posted:

Belinda,

Welcome to the forum.

This thread is from 2008. We try not to reactivate old threads if possible.
This is because as laws change what was good advice in 2008 may be bad advice in 2013.
This could become confusing to readers who are looking for assistance but don't post.

As for your question, typically the discussion about the increase would be done in executive session. The vote for the actual increase should be done in open session.

BelindaK1 (Florida)
Posts: 2

Posted:

Not sure if what our board in FL was kosher. They met in executive session to discuss personnel wage increases. They approved increases and implemented them without telling the membership. Since this has an affect on the annual budget, wondered if this should be brought to a board meeting and announced before implementation.

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