Willful Tort

Our By-Laws specify that Board Members shall not be liable to the members of the association for any non-willfull tort.

Breaking the civil codes within the CA Open Meeting Act unknowingly seems like it would be seen as non-willful tort,
but once Board Members are specifically informed about, let's say, what can lawfully be discussed in Executive Session,
and then the Manager or President puts things on the Executive Agenda that fall outside those restrictions, since
Board Member had been informed, and if they went ahead with such discussions, that seems like it would consititue willful tort.
What do you think?

Since Managers hired by the association are supposed to know the details of the laws thatr govern HOA boards,
and if they put such items on the agenda, could that be seen as planned tort, (and therefore, definitely willful?)

“Willful tort is a tort that is committed in an intentional and conscious way. It is neither accidental nor due to negligence.
A willful tort will be done with deliberate intention and also may be preplanned.
If proved, a defendant is liable for more damages than in a case which is not a willful tort."
(https://definitions.uslegal.com/w/willful-tort/)

Thoughts?

But...why have that restricted list if the board can discuss other things?
I’ve spent a lot of time looking, and have not discovered anything that says that the board can use Executive for other things at their discretion.

I think that's what Nicole is saying. That her board does do just that in contravention of CC 4935. I think she's searching for ways to make them stop doing it.

I agree.

Check this:
https://richardsonober.com/hoa-homefront/executive-session-used-or-abused/

(Text of articles below)

Dear Sir,
You have mentioned the open meeting law. You still have not addressed the board going into secret meetings called executive sessions. These meetings are attended by board members only after every one else has been sent home. Our board has been doing it for years.
R.P, Anaheim

Dear R.P.,
Closed or “executive” session is an important tool, protecting certain very sensitive subjects which would damage the HOA or certain homeowners if discussed openly. Closed sessions are specifically authorized by Civil Code 4935. If closed sessions are used for purposes other than specifically authorized, a board violates both the Open Meeting Act (Civil 4900-4955) and the community members’ trust.
Thanks,
Kelly

Hello Mr. Richardson,
The board is continuously discussing paint shades, lobby improvements, new fencing, revoking the no pets policy, whatever topic, in executive session behind closed doors. Is this correct or is there something that prohibits what they are doing?
T.H., Pacific Beach

Dear T.H.,
Only very limited and specified topics may be discussed in closed session, per Civil Code 4935 – Personnel decisions (meaning questions regarding HOA employees); litigation (or threatened litigation and attorney advice about it); disciplinary or common area damage reimbursement hearings; discussions of homeowner delinquency payment plans; assessment foreclosure votes; and formation of contracts (i.e., contract negotiations).
Regards,
Kelly

Dear Kelly,
I have a question about what is/is not allowed in executive sessions. I thought personnel matters and discussions with attorneys were the two major items generally allowed for executive session discussions. Is that correct or am I off base? What are the general rules as to what is allowed to be kept confidential (not shared with members) in executive sessions and what is deemed to be OK to discuss after an executive session? Does a general session vote need to be taken on items discussed in executive sessions?
G.K., Rancho Bernardo

Dear G.K.,
Conversations with association attorneys must be kept confidential to preserve the attorney client privilege. Personnel decisions also must be kept confidential and are also proper for closed session, but most associations do not have “personnel,” since they have no employees.
So long as the board votes only on items properly within closed session, no further membership vote is needed. However, if a board mistakenly handles business in closed session, it should be promptly disclosed in an open meeting, with a motion to ratify the mistaken action.
Whether the issue is personnel, attorney advice, or other of the proper closed session topics, it is critical that directors protect the confidential information and not disclose it outside the board. Many associations require the directors annually sign a confidentiality promise, to remind them of that important responsibility.
Thanks for your questions,
Kelly

More: https://www.pe.com/2015/11/09/what-boards-are-allowed-to-discuss-behind-closed-doors/

Q. Prior to open board meetings, our board has closed door meetings, restricted to attendance by the board of directors.

What can the board of directors of a homeowners association discuss in a closed door meeting? Is the board required to discuss the closed door items at the open board meetings?

– C.S., Placentia

A. Closed session is a very important part of the HOA board process, but it is sometimes overused. Boards are required by Civil Code 4925 to meet in open session, except for executive (closed) session. Per Civil Code 4935, only certain topics may be addressed in closed session: Personnel matters (involving HOA employees), litigation (discussing or receiving attorney advice), member discipline or common area damage reimbursement hearings, delinquency payment plans, formation of contracts (developing negotiating strategy and counter offers), voting to foreclose upon assessment liens and meeting with members to discuss assessment delinquencies.

Any topics other than those listed in Civil Code 4935 must be in open session. However, a number of board actions often are mistakenly handled in closed session, such as filling board vacancies. If one is in doubt as to the whether a given topic should be discussed in closed or open session, a quick call to your HOA lawyer can help make sure a subject is not erroneously handled in closed session.

Under Civil Code 4935(e), the board must generally note the subjects of a closed session in the next open session minutes, such as “personnel matter” and “foreclosure vote.”

I think this is the way that in a meeting they can point to a certain section and say: this is confidential.
If the topics are limited to only a certain few things that in most cases will need to be kept confidential, then there is no confusion about that, and all such information is confined to that set of things, which are only talked about in closed session.
What originally brought up the question is for me in the first place is that discussions were had that I knew did not fit the profile for confidential information and yet they happened in executive session.
Some of the information in question was that of my own experience and life... this was before I knew that executive session was restricted to only a few specific topics. Later somebody asserted that everything spoken about in executive session had to stay secret no matter what it was.
Did that information ... my information, now have to be kept confidential because it was mentioned and discussed briefly in an in an executive session? That’s when the looking around and discovering this angle took place.

And it definitely makes sense to me because if it’s limited to only a few topics then it’s contained within like a capsule, and truly it can all be said that this is confidential and should be kept confidential because it’s limited to these topics, this information.

Does that makes sense? because it does to me.

In those questions and answers, the response is the same each time- that ES is not the topics listed in 4935 only, and that all else is to be handled in Open Session.
If you know the senior partner there, is it possible for you to ask?
I don’t think they take phone questions, or maybe they could chime in here?

The info I posted only applies to CA HOAs, though I know similar laws exists elsewhere that are very close in content (sunshine laws, open meeting laws).

The association can get sued for each violation of 4935 or any part of the Open Meeting Act for 500$ per violation.

See Ca cc 4955

What member rights were violated?

Civil Code §4955. Civil Action to Enforce Article.
[Old: Civ. Code §1363.09(a)-(b)]

(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues.

(b) A member who prevails in a civil action to enforce the member’s rights pursuant to this article shall be entitled to reasonable attorney’s fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.

Civil Code Section 4925 is the statute that says, for HOA Board meetings, anything not discussed in Executive Session has to be discussed in a board meeting in front of all members. From Section 4925:
"(a) Any member may attend board meetings, except when the board adjourns to, or meets solely in, executive session. As specified in subdivision (b) of Section 4090, a member of the association shall be entitled to attend a teleconference meeting or the portion of a teleconference meeting that is open to members, and that meeting or portion of the meeting shall be audible to the members in a location specified in the notice of the meeting. [Old: Civ. Code §1363.05(b)]

(b) The board shall permit any member to speak at any meeting of the association or the board, except for meetings of the board held in executive session. A reasonable time limit for all members of the association to speak to the board or before a meeting of the association shall be established by the board."

Regarding this former HOA of yours: The board did not legally have the option to discuss the annual budget in executive session. Section 4925 is clear that this was supposed to be done in an open meeting.

You didn't answer the question, where does it say what can't be discussed.

In regards to the former HOA, the attorney was present at that meeting.

I'm in complete agreement with Kelly Richardson's numerous Homefront columns discussing this topic. Many CA HOA bylaws also permit only certain topics in ex. session. I think some are getting mired in the following:

"(a) The board MAY adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, "

This means that boards are NOT required to discuss these topics in an open meeting; they may discuss them by adjourning too (which I believe is what th old version said, OR conveying a separate ES. Everything else must be on open meeting agendas. Obvious, the Act does not LIST every single topic that may NOT be in ES. Imagine.

It does go on to state a couple of topics that must be in ES.

Mark's post #30 sounds exactly like what Richard of CA wrote a long time ago. almost word for word.

Nicole, you can try to get your voice in the minutes, but it's pretty clear you'r going to get no where with this board. Wait, what does your contract say whit your Management company? Our says the PM is not required to follow directives that oppose your governing docs or state law. If yours does too, perhaps you can beg h PM to follow the law. but it sounds like you're so outnumbered. sorry.

For the third time, Civil Code Sections 4925 and 4935.



So what. The only "enforcement" of the law the HOA attorney is allowed to practice with a client is in the form of giving legal advice. Under the attorneys' Rules of Professional Conduct (enforceable in the courts by state Bars), the HOA attorney is obliged to defend nearly any decision* a Board majority makes. This includes even the Board decisions the HOA attorney thinks are bad. It happens all the time.

*The one exception being a HOA board majority decision to commit a criminal act. Even in the case of an apparent HOA Board-planned criminal act, the attorney is not necessarily required to go to law enforcement.

Are you saying the practice of attorneys defending even bad decisions of a board is a load of crap, or are you saying Augustin's reply is a load of crap?