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ChrisP5
(Missouri)

Posts:75

03/18/2010 6:10 PM
My board has finally come to the realization that there are certain things that should be discussed in executive session (legal actions, member discipline hearings, etc). The last meeting found the board going into and coming out of ES twice in the same meeting. There is now discussion if each ES should have its own separate minutes or of there should be a general set of minutes for the meeting and a set of minutes for both ESs combined into another document. How do your associations handle this?

RobertR1
(South Carolina)

Posts:5164

03/18/2010 6:58 PM
Chris, Always look for what your documents say, from there go to non-profit guidelines for your state and from there to state requirements. This sort of thing is usually directed by state statutes, but I'm betting for your HOA what you are seeking is not going to be defined. There may be reasons that would dictate that you could go into ES twice in one meeting, but I sure would not make a practice of it. As to minutes, our legal advice is to not take minutes or notes or record conversation. Address the issue, if you can get to a vote, have one, record the roll call and close the meeting. When the regular meeting resumes the President announces the action taken and the vote. If no action and a vote was not taken or defeated, the president announce no action taken therefore no decision announced. This is only one example and just about everyone does it a little different. My long term observation is the problems with ES is primarily because a lot of boards will call es to circumvent the open meeting laws. This causes more trouble than any votes taken I believe. The reason for ES are usually very narrow and if you abide by that, what the Board decides doesn't seem to cause conflict. I don't know if I have seen anything that DIRECTS how minutes are or are not kept. There is no question that some matters are confidential and the Board must deal with them in ES, the Board has to walk this line. So my opinion is, unless directed otherwise I think the Board has no order to take minutes at all

TimB4
(Virginia)

Posts:3229

03/18/2010 10:17 PM
Chris, Robert gave some good advise. However, I would like to offer an alternative based on Fairfax County Community Association Manual (full text 1.5 Mb) In general, votes should not be taken in the executive session but only in the regular meeting. Specifics from the above link regarding minutes and executive sessions: Executive Sessions and Privileged Information: - Closed, executive sessions of the board are to discuss privileged, legal and/or private matters but only under very limited and specific subjects and circumstances. Executive sessions are not to be used to circumvent the open meeting requirements, to avoid the attending members, or to “skirt” nagging or contentious issues; the sole purpose of a closed executive session is to protect the privacy of these specific subjects only: • personnel matters (employed staff or association members); • consultation with legal counsel; • contract discussion; • pending or probable litigation; • personal liability of members to the association; and • punitive matters and hearings concerning violations of the declaration, covenants or rules, and consideration of levying assessments for such violations. An executive session is only one part of an open board or membership meeting. A motion identifying the specific subject(s) and reason(s) for an executive session must be made, seconded, approved and recorded in the minutes of the open meeting. Following the closed session, the directors must reconvene in the open meeting and any agreement or decision resulting from the closed discussions must be voiced and substantially identified and/or voted in the reconvened open meeting for purpose of recordation in the minutes. While agreements can be decided, no votes are permitted in such executive session because the laws prohibit secret voting in board matters. Too often, the purpose and legal provisions for executive session are misunderstood, and sometimes flagrantly misused. It is a clear violation of state law to “adjourn the meeting to go into closed executive session” as many associations have routinely practiced. It is also a violation to convene and conduct an executive session prior to the start of any meeting regardless of how practical or well-intentioned the reason. The board could invite a lawsuit by enforcing a closed-session decision that was not substantially identified and recorded in a reconvened open meeting, and not publicized to the association members. As Robert said, you should first check your governing documents and State laws. Hope this helps, Tim

RogerB
(Colorado)

Posts:4645

03/19/2010 7:58 AM
Tim, IMO your post provides excellent guidance on conducting an executive session. It is exactly what our Agents suggest to all Boards.

MaryA1

Posts:0

03/19/2010 12:08 PM
I agree, Tim does give some good advice and it could be followed if there are no state laws to the contrary. The guidelines he gives are not a requirement of the AZ Open Meeting Law. The board can vote and make decisions in a closed meeting and they do not have to announce their actions in an open meeting. The bottom line is that you must do whatever your gov docs and/or state law state. If both are silent then you can adopt a policy and the one that Tim suggests is, I believe, a very good policy to follow.

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