Illegal Executive Session Meeting?

How do you stop a Board from committing and illegal act.?

Several day ago,as the Architectural Committee Spokesperson, I received a letter June 29th from the Board: “Meeting scheduled for Wednesday July 6, 2016 at 6:30 at the clubhouse. For the Parking Committee and the Architectural Committee. This is a closed meeting between the HOA board and the committees only.“. They asked me to contact our members for the meeting.

No agenda was provided. I asked for an agenda, and pointed out that Executive Session can only be held for “legal”, “collections”, “member discipline” or “contracts”. I have yet to receive an answer. I told them that the Architectural/Parking Committees prefers to hold meeting in “Open Session”. One Board member responded that he want the Architectural Committee to approve the installation of “Retractible Patio Awning”. But no other answer was provided. I post an agenda July 1st at the Bulletin Board but as an “Open Meeting”. Our agenda was rip down several time. July 2, the Board posted this on our Bulletin Boards: “The Board of Directors. as well as the Parking and Architectural Committees will be meeting on Wednesday, July 6, 2016, at 6:30pm, to discuss Parking and Architectural Charters, parking problems, as well as the review of a pending architectural application for a retractible awning installation. The meeting will be held in close session, and therefore not open to homeowners. Except for the “Closed Session”, this is an exact copy of my original agenda. Our agenda was rip down.

This is from Davis-Sterling

Emergency Defined. An "emergency" is defined as "circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board, and which of necessity make it impracticable to provide notice" to the membership. (Civ. Code §4923; Civ Code §4930(d)(1).)

▪ Notice to Members. Posting a membership notice and an agenda is not necessary since the meeting, by its nature, is unexpected and immediate.
▪ Fiduciary Duty. In an emergency where immediate board action is required, if a director does not have a legitimate reason for refusing to waive the 48-hour notice to directors required by Corporations Code §7211(a)(3), that director may be in breach of his/her fiduciary duties.

Executive sessions of the board of directors are provided by statute so boards can address issues involving privileged information and matters of a private nature. As a result, members do not have a right to attend executive sessions. As provided for in Civil Code §4935, boards may go into executive session for the following matters:
1.  Legal Issues.
2.  Formation of Contracts.
3.  Disciplinary Hearings. 
4.  Personnel Issues. 
5.  Payment Plan.
6.  Foreclosure.

I have pointed this out to them and receive not answer. In our original charter, the Committees could elect the Spokesperson. The new Charter is the Board will appoint the Spokesperson, this was pasted with no discussion at the last Board meeting. I am convinced that the Board would like to get rid of me because I have spoken about the $105,000 expense they have spend i against a single home who have approval from City to remodeling the interior of their condo and represented themselves at trial. This expense has created an $85,000 deficit to our operating funds for the last three months and is impacting Financing for property purchases not to mention property values. Our month HOA dues for the 180 members is around $80,000 per month.

Any advice? Should I resign?. Should members attend?

Richard

Could not a Committee invite the BOD to their Committee Meeting thus not have to have it open?

Michael, Richard is correct. Your board is violating the Open Meeting Act in CA.

You might try a registered letter to the board President, copying your property mgr. if you have one.

If that doesn't stop this violation of civil code, at the the next open board mtg., you and better yet with others, attend and complain during open forum about the illegal closed meeting.

Beyond that, a group of you who understand this board's violations of the law could chip in to get a letter form an HOA attorney ordering the board to stop holding illegal closed meetings.

If that doesn't work, yes, you can go to court.

Abusive boards really can be best fixed by joint action of owners in coding a recall of them. But that that takes a lot of effort.

Ah, yes; now I remember you, Michael.

As Tim & I both pointed out, you need the support of your committee members and/or of other in your HOA to get the board to act legally. since the board looks like it's going to dump you as Comm. chair, why not bring a botch of Owners to the illegal closed meeting.

Aside from that, it's usual for boards to be able to appoint committee members & committee chairs no matter what your charters say. It's in
CA Corporations Code.

Not sure, Michael, why you cited the Davis-Stirling legislation about emergency meetings in CA as it doesn't apply to your situation.

Btw, I think you might get more replies if you try to make your posts shorter. Some of us can't or won't spend the time reading l-o-n-g ones.

I think it would be more important to attend.

At the start of the meeting, cite the applicable laws, applicable sections of the governing documents and demand that the Board comply.
See what happens.

If they refuse, insist that the minutes contain your citation and that you attend the meeting under protest.

Otherwise, if you don't attend, you won't know whats going on and you won't be able to influence anything.

OK, I attended this "Emergency Close Executive Session" from your advise. I asked the Board why they rip down my Announcements. They said that only the Board can announce meetings. This is new rules. Our committee members were very confused about this. We have have announce our Committee meetings before which I set up and called. They also said they were not violating any civil code or the "Open Meeting Act" . Why this was an "Emergency Close Executive Session" is they wanted to exclude the members from seeing what they were doing because it would interfere. I asked when the torn down my notices why they did not contact me. Their answer was they were too busy. I expressed that they were making it impossible for me to work with them and would like them to dismiss. They refused. For the meeting, they pretty well followed my agenda and they stated that they would take the minutes. I did not know if we will ever see the minute and point that stuff in this meeting is confidential and by the members attending they fall under that umbrella.

This is the original email that was sent June 29th which started this disaster. I removed names.

"Subject: Committee Meetings

xxxxxparking spokespersonxxxxxx, and xxxxarchitectural spokespersonxxxxxx,

Meeting scheduled for Wednesday July 6, 2016 at 6:30 at the clubhouse. For the Parking Committee and the Architectural Committee. This is a closed meeting between the HOA board and the committees only. Please inform your committee members.

xxxxxBoard Memberxxxxx"

When I received this, I sent an email as to why it was a "closed Meeting" and what was the agenda. No correspondence was ever forthcoming,

I then posted on July 1, my "open meeting agenda" after another Board member said he want to make sure his Architecture request would be processed by the committee. He is brand new member and knew nothing about what was going on except being told to contact me. After my agenda had been ripped down for two days in a row, the Board then put up the "Emergency Close Executive Session" two days prior to the meeting. I sent an email to them stating they were violating "Davis-Sterling". No response. I dent a complain to the property management.

This Board is not communicating with me, This lack of communication makes my present very useless to this committee and I should move on. The unfortunately thing is the committee is really a shinning start at my HOA.

Thanks James. If I take them through the legal process and get a judgement, then the money come out of the HOA- A litigation with a homeowner has put our HOA 83K in the whole for the last three months, though they have a judgement agains the home owner for $99K for wanting to install a 600lb island in their extended kitchen. I know these people. Ever since they pursue this litigation with this attorney, they seem to think they answer to know one. There will be two new people on the Board who do not know what is going on at the end of the month. And then I expect them to talk with the attorney. I think the Board is lying to the members and when you lie you need to tell more lies. I do not know what to do. Also, the Board prevented me to run for the Board.

Michael,

Two things:

1. If you elect to litigate the matter, that doesn't mean -- and in over 90% of the cases filed, it WON'T mean -- that the matter will proceed to a judgment. I presume that your Association has D&O insurance; if that is correct, there are strong financial incentives for early resolution of such disputes. Perhaps even more importantly, that money spent on litigation will NOT come out of the HOA's coffers, but be paid by the insurance carrier (less whatever deductible may apply).

2. What about the mediation angle? Is that available to you as a concerned homeowner in CA?

In FL, where I practice, any homeowner can demand mediation vs. the Association under these circumstances (Section 720.311, Fla. Stat.).

Per my very quick research into this latter question, it appears that CA law DOES provide for a similar mediation process. See Chapter 10, Article 2-3, Davis-Stirling Act:

http://www.davis-stirling.com/MainIndex/Statutes/NewDavis-StirlingAct/tabid/3667/Default.aspx

Micael, please, s please review the posting rules. You should v never have mentioned your HOA name, the mgmt. co. or your PM's name. You've opened yourself up to liability charges, I believe, or at, best, defamation of character accusations. I suggest you get your improper post removed, and I'm not going to look up how to do that.

In CA, only the Bylaws can state whether or not you must reside at the HOA where you want to be on the Board. Even if the Election Rules DO state you must be a resident, if your Bylaws do not, you can challenge it in court. Bylaws prevail over Election Rules.

You might try sitting down with the PM, who probably is only doing what the Board tells her. Also ask in writing to review the contract between her MC & your HOA to see if there's a clauses that says the MC should not to do anything that opposes your governing document or state law.

James is right. In CA you may request mediation and your HOA board must comply. Go to the site that James supplied and follow the procedures.

As you've probably noticed by now, Michael, you're not getting much help. I believe it's because your situation is very unpleasant an, short, of rallying other W Owrens behind you, you're going to need the advice of an HOA attorney.

I don't understand what you wrote Michael: "Second, I am very little confused on how to respond an individual specifically. Could you clarify"

Please tell me what you mean.

Perhaps you intended to say directed proxy.

Unofficial ballots would not be counted and may confuse the membership.

My understanding was that CA uses mail-in ballots instead of proxy ballots. But I'm not really up to speed on CA. So I just threw it out there as something to consider.

I do agree with you that a later dated proxy "should" override a prior mail-in ballot. But that's likely to create more antagonism.

Re: CA proxy provision in the Davis-Stirling Act:

//Civil Code §5130. Proxies.
[Old: Civ. Code §1363.03(d)]

(a) For purposes of this article, the following definitions shall apply:
(1) “Proxy”means a written authorization signed by a member or the authorized representative of the member that gives another member or members the power to vote on behalf of that member.

(2) “Signed” means the placing of the member’s name on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the member or authorized representative of the member.
(b) Proxies shall not be construed or used in lieu of a ballot. An association may use proxies if permitted or required by the bylaws of the association and if those proxies meet the requirements of this article, other laws, and the governing documents, but the association shall not be required to prepare or distribute proxies pursuant to this article.

(c) Any instruction given in a proxy issued for an election that directs the manner in which the proxyholder is to cast the vote shall be set forth on a separate page of the proxy that can be detached and given to the proxyholder to retain. The proxyholder shall cast the member’s vote by secret ballot. The proxy may be revoked by the member prior to the receipt of the ballot by the inspector of elections as described in Section 7613 of the Corporations Code.

(Added by Stats. 2012, Ch. 180, Sec. 2. Effective January 1, 2013. Operative January 1, 2014, by Sec. 3 of Ch. 180.)//

From what I deduce from the above, proxies in CA can either be general proxies or directed proxies, dependent on the governing documents of the given community. Proxies -- assuming that they are authorized under the community's GDs -- are then exchanged for ballots, which are cast.

Re: the casting of ballots, it appears that CA subscribes to the mail-in/double envelope approach:

//Civil Code §5115. Voting Procedure.

(a) Ballots and two preaddressed envelopes with instructions on how to return ballots shall be mailed by first-class mail or delivered by the association to every member not less than 30 days prior to the deadline for voting. In order to preserve confidentiality, a voter may not be identified by name, address, or lot, parcel, or unit number on the ballot. The association shall use as a model those procedures used by California counties for ensuring confidentiality of vote by mail ballots, including all of the following: [Old: Civ. Code §1363.03(e)]
(1) The ballot itself is not signed by the voter, but is inserted into an envelope that is sealed. This envelope is inserted into a second envelope that is sealed. In the upper left hand corner of the second envelope, the voter shall sign the voter’s name, indicate the voter’s name, and indicate the address or separate interest identifier that entitles the voter to vote.

(2) The second envelope is addressed to the inspector or inspectors of elections, who will be tallying the votes. The envelope may be mailed or delivered by hand to a location specified by the inspector or inspectors of elections. The member may request a receipt for delivery.
(b) A quorum shall be required only if so stated in the governing documents or other provisions of law. If a quorum is required by the governing documents, each ballot received by the inspector of elections shall be treated as a member present at a meeting for purposes of establishing a quorum. [Old: Civ. Code §1363.03(b)]

(c) An association shall allow for cumulative voting using the secret ballot procedures provided in this section, if cumulative voting is provided for in the governing documents. [Old: Civ. Code §1363.03(b)]

(d) Except for the meeting to count the votes required in subdivision (a) of Section 5120, an election may be conducted entirely by mail unless otherwise specified in the governing documents. [Old: Civ. Code §1363.03(k)]

(e) In an election to approve an amendment of the governing documents, the text of the proposed amendment shall be delivered to the members with the ballot. [Old: Civ. Code §1355(b)(1)]

(Added by Stats. 2012, Ch. 180, Sec. 2. Effective January 1, 2013. Operative January 1, 2014, by Sec. 3 of Ch. 180.)//

If I understand him correctly, PitA is correct re: CA. Once a secret (double envelope) ballot has been received at the site designated by the Inspector(s) of election, it is irrevocable.

Michael

Do you understand the process that MUST be followed when updating Elections Rules or Rules and Regulations? Both have to be sent to all homeowners PRIOR to the Board voting for their comment(s).

There are certain items that can be placed in the Elections Rules without amending the CCRs or Bylaws, but very few. But, because your HOA address was not your primary address is NOT one of them.

For those outside of CA, the Election Rules Richard & I referred to are required in CA. In general, they may not contradict the HOA's bylaws. And these Election Rules cannot substantively be changed, as those at Michael's HOA seem to have been, without sending the doc to all Owners for a 30-day comment period.

Michael, if you're looking for individual posters' email addresses many of us choose not to give those out.

So how did the election go?

One possible reason is simply that they don't want to do the work themselves.

Question for you Tim, If a board knowingly and blatantly goes into executive session from time to time without citing any of the legal reasons to do so, even going so far as to almost chest pump as they ask a homeowner to leave so they can talk about him or her individually, is the discussion in that executive session still privileged?

In other words, can a board member discuss information from executive session without fear of a breach of his or her fiduciary duty, if the board deliberately entered that particular executive session illegally, and then the discussion was clearly not on a topic permitted by Virginia Statutes?

Thanks for the response. There is no doubt our board has abused executive session (my views and the views of every attorney I've brought into the know).

So, if a board member knows an executive session is bogus, as are the discussions in it, can that board member then openly discuss what was talked about in executive session with other homeowners? If the other board members try to call foul because they believe their illegal discussion was top secret, can they go after the other board member for a fiduciary duty violation.

There is audio and video evidence that the board violated our governing documents and state code going into the executive session.

My feeling is a board member owes a fiduciary duty to the homeowners of the association, not the other board members. I believe it is the other four violating their fiduciary duty.