Executive Session & Open Meeting problem

Hi Everyone,
I have recently taken a position on our Associations' board. I am volunteering as an advisor for extensive rennovations that are in the planning stages. This is a 100+ Unit complex.

At my first meeting, several unit owners attended the open meeting. The Tres. addressed some very minor issues regarding rennovation of only one portion of the complex.

To keep a long story short..they discussed this one issue for quite some time and voted. Then the pres advised the owners that the meeting was going into executive session and thanked them for attending. At the exec session discussions about a few fines and illegal modifications to units were discussed, I was consulted, and the issues were voted on. Then the pres announced they were going back into the open meeting, looked around and chuckled & indicated we would get a lot done now.

At the open meeting which resumed, we discussed extensive info about the rennovations, samples, design ideas etc that I had brought & was prepared to discuss.

In the days following the meeting, I was approached by several owners asking why the rennovations were not discussed..In my concern, I noticed that the prior months meeting had also gone from open/exec/back to open.

I am concerned about this practice as it may not be legal and it does not seem ethical or good business practice. Should I address my concern? or is their anything in the code that addresses this issue? I seem to have put myself in a precarious situation where the board and unit owner/members are not communicating and I am finding myself in the middle.

Thanks for reading through this, and any thoughts would be greatly appreciated.

Thanks Brian. I appreciate the info. It seems to me the intent was to clear the room.

I will advise the homeowners who attended that they need question the status of the meeting before leaving next time.

I am sure the details we discussed will be re-visited at our next meeting to bring everyone up to speed.

Oh, it's "GD." Sorry. Your open meeting agenda must be posted 4 days before the open meeting is held. That way, Members can see if they want to attend based on the agenda items.

I'm now wondering if the president was permitting questions/comments from Members during your open meeting portion devoted to renovation planning. If so, this could account for very long discussions. In Calif., Members must be allowed to speak during some sort of open forum. We hold one before and one & one after every open meeting. And our board has, indeed, reconsidered decisions made earlier in the meeting after hearing from Members at the open forum at the end the meeting.

If Members are permitted to speak throughout the open meeting, it could consume a huge amount of time.

Calif. Civil Code does permit the Board to vote during executive session with a few exceptions (voting to file liens, for example). We summarize the executive session at the next open meeting and also generally note the executive session results in our open meeting minutes.

It may be different in other states.

Right, GD, both Brian & I in our initial responses agreed that the president should NOT have insinuated the open meeting was over.

As I noted in a later post, in Calif., civil code requires that open meeting agendas be posted where Members are likely to see them 4 days ahead of the meeting. Nothing may be added to the agenda after that time (with few exceptions). We (our Board) also has agendas for Members to pick up on their way into the meeting.

If Members read the agenda, they will know each agenda item and the order in which the board will address each one.

Again, are you on the board, GD?

Dear Carol...

I am also in California. My husband and I have been to small claims court three times and to mediation twice.

The board lost all three times and the mediation was an enforcement action.

A judge will take a dim view of your board's tactics. We went before two separate judges. Mediation cost the insurance a considerable amount of money and I expect to see the insurance premiums increased as a result. This wont bother us because we have elected to sell.

For rule changes and changes to the common area, the board must allow the members to speak before voting.

As you can already tell, there were people concerned with the issues raised. The board of directors has a fiduciary duty to follow the wishes of the members. In many communities, they try to encourage meeting attendance, but the actions by your board is doing the opposite.

In an executive session, non-directors can be present but that is with the permission of the board. You were present, but the moment that you saw what was happening, you should have voiced an objection. This is to say silence is approval.

If you continue in your capacity as adviser you could get in legal trouble because you know what is happening.

What commonly happens is that all non-executive session issues on the agenda are handled before an executive session AND before going into executive session, the members are allowed to have an open forum. This is how most city council/school board meetings are run in compliance with the Brown Act. The Davis-Stirling Act was modeled on the Brown Act.

Notice the below listed civil code, it doesn't say when the members make the comments, but that a rule change can be made only AFTER consideration.

If I was a member, I would immediately stand up and object to the executive session because of the agenda. What your board is doing is bound to cause conflict and it could end up costing your board a lot of money.

Our judgment which we just signed and are now waiting for the board to sign is in the tens of thousands and that covers all our legal fees.

Civil Code §1357.130. Notice of Proposed Rule Change.

(b) A decision on a proposed rule change shall be made at a meeting of the board of directors, after consideration of any comments made by association members.

Civil Code §1357.120. Applicability and Limitations.

(a) Sections 1357.130 and 1357.140 only apply to an operating rule that relates to one or more of the following subjects:

(6) Any procedures for reviewing and approving or disapproving a proposed physical change to a member's separate interest or to the common area.

Sorry about that Carol.

I think GD mentioned renovation so I'm assuming that is a common area. The codes I cited have to do with the common areas.

The open forum is different from this because as you indicated the open forum can be before or at the end of a meeting. I believe the wording of the Davis Stirling Act leaves this open to the format chosen by the board (before or to).

For certain types of changes, the comments of members must be allowed BEFORE a vote on that item. ˜So a notice of a proposed rule change (1357.130) says that a decision can only be made AFTER any comments by association members.

One of the things this is applicable to is the reviewing and approving of a physical change to the common area. In the case of a renovation, this should apply IMHO.

Discussion of violations to CC&R can be discussed in an open meeting, but if names are used this could open up the board to defamation charges.

This was also part of our mediation lawsuit against the board.

Are you saying that 2pm isn't convenient for you? For Members? Or both?

This certainly COULD be interpreted as the board wanting to dampen Members' attendance, and very well may be interpreted that way by Members given your Board's behavior at its last open meeting. As a couple of other posters have pointed out, your board is setting itself up for resistance, rumors, etc., which in turn, could make the renovation planning process nasty!

When our board has held special meetings of the board, they've always been on a special topic of wide interest to Members, so they're in the evening to elect maximum participation.

(We have a Mgmt. Co (MC) & full time onsite PM, and our contact with them lets them charge OT for more than two evening meetings a month. If you have a PM, is it possible that the MC would charge extra for more than one evening meeting a month?)

It's great that you'll review the 2nd half of that last meeting for Members. (Don't blame yourself for the board's seemingly sleazy behavior.) You might also see if enough is recorded in those minutes to be useful.

Since Members are complaining to you, and the board wants your services, this might be a good time for you to try to mend some fences.

GD

You were asked to help in a major renovation project. You were not asked to be the go-between when members, yourself included, might not like how the BOD operates.

My suggestion is to limit your interaction ewith the BOD to the improvement project or resign and run for the BOD.

You cannot serve two masters properly.

Hello everyone,
The notice was posted about 7 days in advance and is an emergency board member
meeting. I think they are aware of the davis sterling act and notification procedures required. We also have a full time PM that is accredited and aware of the requirements. She, unfortunately, is also having a difficult time with
a few board members. see below.

The afternoon times are not convenient for myself and most members. The meeting time was choosen by 2 members (pres & vp) Topics are almost 100% rennovation related.

I hate to get into this, but some of the board members (2 above) do not work and have quite a bit of time. They have taken it upon themselves to adopt the building as their full time job and create work for themselves.

I was asked to participate by members and other board members in order to move the rennovations forward as they have been in the discussion, planning, and design stages for about 5 years.

The property is not in good condition and is in desperate need of rennovation to interiors and exteriors. It is unfortunate but property values of the units are suffering due to the condition of the interiors, common areas etc. There is no disrepair, but to accurate describe it would be "just old and worn to the bone"

I have tried to maintain a neutral position and focus on the rennovations. This is generally my opening statement to each person that approaches me. I am also hoping in the long term that the building will slowly re-attract owner occupants. The bldg is now well over 50% rental.

I agree that this does not meet the definition of an emergency meeting.

Does your CC&R have a set time and day of the week for meetings?

When you say the board members "create work for themselves" are you saying because they have nothing else to do, they spend all their time on HOA business as volunteers or do they actually get paid?

I wrote this in another thread. I am writing a guest column about HOA management or rather mismanagement for the Pasadena Weekly. I don't know what area you are in, but you can contact the editor and ask about the freelancer who's writing about condos for a guest column.

You don't have to divulge that information if you do not want to.