Board Member Exclusions

No. The primary reason executive sessions are held is to discuss privileged information, such as board member discipline for a conflict of interest or to discuss legal action by or against the association with the association attorney. This is also why executive sessions should be rare. There should NEVER be any discussion of excluding this or that board member from anything related to association business.

So far we have one yes and one no. I will say maybe.

So.....Dan what ARE the circumstances. I'll wait for that before attempting a reply.

Augustine,

I have seen it happen twice, both in my former community. Once, when a director was leaking information to a group of people, we censured the individual and withheld certain documents they were forwarding.

In the second instance, which is currently going on, the Board, by a 3-2 censured a friend of mine for questioning the actions and behaviors of the Board President, rightfully so, I might add. It was in the ethics policy, written by the law partner at the site you referenced.

I am not generally not in favor of such a move, but I have seen instances where it makes sense. If they don't like, there is a court system they can fight it in.

I also think, Augie, you'll find anther way at the D-S website whereby the board creates an Executive Committee of all directors except the rogue. Maybe s/he mouths off about executive session materials. Maybe s/he keeps interrupting at meetings. There also could, of course, be a conflict of interest involved.

The activity of censuring--how to do it-- comes from, I'm pretty sure, Robert's Rules of Order.

Thank you, Richard and Kerry. I agree that a Board does have to take action when it has direct proof a board member is leaking confidential information. To do nothing may result in an action by the board member that results in the HOA being found liable for various torts.

About a certain Board President resenting being challenged re certain actions and behaviors: I think one of the biggest HOA myths around is that a Board President has special powers not listed in the governing documents. The position too often invites those most interested in a power trip, and hence most likely to abuse her or his volunteer job title of President.

Not in Florida. A closed board meeting may only be held to discuss employee matters - a director is not an employee - and matters that would fall under attorney-client privilege. The only "for cause" reason to exclude a director from a board meeting would be if that director was involved or potentially involved in a lawsuit vs the association.

This is the case here. A director sought access to association records and was ignored. The association was challenged in court and the complaining director prevailed and was awarded $500. The rest of the board hired an attorney and is appealing the court decision. The hiring of the attorney and the decision to appeal was done in executive session and the complaining director was not invited to that meeting. So perhaps when the minority number of directors is the object of the majority then that minority would not be entitled to to attend.

That is the case here.

In this case it was the president that called for the executive session, by invitation, and outside of a board meeting. Thus no agenda item and no minutes of that session. The Board attorney was present via telephone. Perhaps a majority of a board can choose to exclude the minority for any reason assuming a quorum was attained. The minority directors would also thus not be able to use the services of the Board attorney I would assume. In this case the legal challenge is against the judge, not the director, in claiming the judge did not apply the law properly.

Records sought, I understand were minutes of prior meetings and current landscape contract and perhaps other agreements currently in force. Important to note that the denial was in the form of no response to the request.

It doesn't work that way in Florida, though. Any gathering of directors large enough to form a quorum IS a board meeting and MUST be noticed to the membership. "This is an executive session and not a board meeting," doesn't hold water. If a majority of directors are present (a quorum) then it IS a board meeting regardless of what anyone says, including the association attorney. The only way to have it not be a board meeting is if less than a quorum of directors was present.

Ignoring a proper request for official records is the same as a denial.

The association did not represent itself in court. They were a no-show. The judge required proof of proper notification by the complaining director and confirmed that the court itself also notified the association to appear in court. The complaining director represented himself thus his cost was filing fees, certified mailing costs and the cost to serve notice to the agent of the association. The association started to incur attorney fees after the association decided to appeal the judges ruling. Cumulative association cost is unknown to me. Attorney fee is #300 per hour and may be ongoing.

The complaining director is new to the board that has had the same directors for at least 5 years. Don't know if this is a factor. It seems to me that what he was asking for was reasonable. He says he will follow through but will not get his own attorney due to cost. From here on he will request info pertinent to agenda items and if ignored will simply abstain rather than go through the grief again. Can't say I blame him.

Did not happen. There was no response.

I think that Florida allows one to ask for reasonable attorney fee reimbursement for the prevailing party. The awarding of such could be lethal to an individual and just a nuisance to a large association. Sometimes the complaining party had a strong argument but had a procedural defect in the handling of the case and thus loses the case and may have to pay the other sides legal fees as well as their own. Going after an association is fraught with peril even if you have a great case. Most times, when one is successful, all he gets is what he should have received in the first place and nothing more. Time, energy, the loss of use of funds, the possible perils, discourages most from seeking justice. Further, an association that loses a case can first ask for the judge to reconsider and if that fails seek to appeal which adds considerable costs especially to the brave soul who probably now regrets taking legal action to begin with.

In this case most of the owners do not even know what is going on. There was no board meeting thus no minutes and any questioning is met with the 'attorney client privlage' argument. In financial statements, costs are thrown into a 'Misc Expense' category. The board mostly holds board meetings that are required by law thus they rarely meet and when they do it is on a Monday mid afternoon when most are at work thus attendance is very low due to the day and time the meetings are held also if you are not paying attention and do not catch the 48 hour meeting notice you may not know that there was a meeting in the first place. In an environment like this it is hard to blame the owners for not taking appropriate action like a recall. Yes, the owners will have to pay their share if attorney fees are awarded the complaining party, plus the association's own, but they will not know really why.

Thanks for chiming in though.

Perhaps I should add that this is a 150 unit condominium and if one goes by how many owners get their mail there, only 19 units are owner occupied. The rest are rented out or are a vacation home and vacant most of the time. Ok, so one can make the argument of owner apathy but maybe not so harshly.