HOA Board special Executive Session meeting in Virginia

The Board/management posted a notice indicating that there will be a special Executive Session meeting to discuss "LEGAL ISSUES" and no homeowners will be allowed.
I can understand if the board is going to discuss a legal issue concerning a particular owner(s), then I don't need to be in that meeting. However, if the board is going to discuss a legal matter that may affect the HOA as a whole, then it's different and owners must be allowed in that meeting. Your thoughts?
Thanks!

Ted,

I understand your thinking. However, VA statutes do not support that thinking.
In fact, the only reason the membership even received notice about the meeting is because executive sessions are to be entered from and return to a normal Board meeting. Even though you may now be thinking that you have a right to attend the normal board meetings (which you do in VA), the process will likely go as follows:

1) Meeting Called to Order
2) Certification of quorum is present
3) Meeting is recessed so the Board may convene in executive session to discuss a legal matter (all members are required to leave the room or the Board leaves the room - depending on where the meeting is being held)
4) Meeting is reconvened - Board returns from executive session.
5) Notations of any decisions made pursuant to the executive session.
6) Meeting adjourned

See:

VA § 55-510.1. Meetings of the board of directors see paragraph C

VA § 55-79.75 applicable if in a condominium. Again, see paragraph C

Fairfax County Community Association Manual, specifically Chapter 2 Executive Sessions and Privileged Information
Not a statute nor a regulation. Simply a manual Fairfax County VA put together to explain how Associations in VA should be ran. Note: This is good for all Associations anywhere, but it's based on VA statutes, therefore, always see what your State Statutes say.

Again, I understand your thinking. However, the Board also has a fiduciary duty to protect the privacy of any individual involved in potential legal action until legal action is taken and is made public (darn privacy laws). These are the type of decisions some Boards must make and why they were elected to that position.

I you would like to change this practice, then the quickest option is to gather support and get yourself and others who think similarly elected to the Board.

Ted

I agree with Roger. The BOD was elected to represent all thus no need to always look over their shoulder concerning each and every decision. Not that you (or anybody for that matter, myself included) will always always agree but if elected then we de facto gave them their authority. If they get out of hand then "pull" that authority back via recall, elections, etc. rather then pi$$ and moan at each of their decisions.

Board should state clearly in a motion in an open meeting specifically what they want to enter executive session for. It has to be recorded in the minutes of a properly noticed board meeting, and all members have the right to attend, hear the motion, and speak at all open board meetings. If the board is simply saying they want to go into executive session to discuss "legal issues" they are not meeting the requirement outlined in Va state code in my opinion. If they want to enter executive session to meet with "legal counsel" about a certain topic allowed in paragraph C of 55-510.1, then that would be different. They would need to make the motion in respect to this.

Our HOA Board meets in ES BEFORE the general session. There are five topics that are allowed to be discussed in ES. On the agenda, there is time allocated for the Board or manager to put into the minutes what was "GENERALLY" discussed in ES. There will be no specifics, no names or companies. If there is a contract to be approved from meeting with three vendors, that has it own time slot, as with the lien or collection process, using either account numbers or APN numbers.

I hear you Kerry. If the board is meeting in executive session to address "pending or probable litigation" they need to simply reference that in the motion and not say "legal issues". Va. code allows several reasons to discuss topics away from members, but the members need to know specifically which reason the board wants to go into executive session for. It is part of board transparency.

To meet with legal counsel is just one of the permitted reasons. I never said an attorney is required to be there?

Members don't need to speculate on what "might" be the reason for entering executive session. The Board is required to tell the members the specific reason in a motion.

As you probably know, I strongly advocate complete board openness. I don't even like executive sessions. Every one I've been part of is abused in some way with board members discussing improper topics in private and away from members.

Also can't stand the constant use of board email, which is essentially unnoticed executive session.

You'll be happy to know that our HOA never talks about improper subjects in ES. Too many of us can recall a previous Board that did!

I'm sure that many directors on the forum follow their state laws. I'm sorry that you were unable to persuade the illegal board in on the ES's that you've been a part of to follow the laws.

CfD

I believe the BOD has the right/obligation to do what they were elected to do and this includes using their authorized power.

I believe when major issues arise a smart BOD will ask for owner input as a guideline, but the BOD has the ultimate authority.

As an example. Our BOD interviewed 3 Management Companies and we decided which of the 3 to select. We are presently interviewing 3 landscaping companies and we will make a choice. We felt no need for owner input on any of these "major" decisions. We are authorized to make them.

More then likely later this year we will be raising the dues by 10% (we do have the authority). This comes after the dues have not been raised in 6 years. We will document it, spread sheet it, talk it up, justify it, etc. We will be holding a General Owner Meeting and allow owners to speak for and against but we fairly well know if owners had a vote, it would get turned down. There will be owners screaming for a vote on it. I know some will gather petitions against it. Once all is said and done, I expect we will implement it. If enough owners do not like it, then recall us.

With command, comes responsibility.

As I'm reading this thread, I believe that what CF is trying to say is that the Board needs to be a little more specific in identifying the reason for use of the executive session.

Using the issue within this thread, examples would be:

Do not say: Entering Executive Session for "LEGAL ISSUES" (using the OP's statement of what their Board said)

Do say: Entering Executive Session to discuss pending legal action for delinquent account

OR Entering Executive Session to discuss legal opinion on xyz

OR Entering Executive Session to discuss legal action brought by member

I do believe that their is a way to keep confidentiality where privacy concerns or legal strategy is required to be kept confidential yet provide enough specifics to let the membership be aware of what may be occurring which can affect them.

Unfortunately, our board members and management, with the support of our HOA attorney, believe they are above the law.

Thank you CfD and Tim for your time to make it this subject matter CLEAR. I also thank all the members who replied to my OP.