Executive Session in CA

Started by ShannonM4 • 20 replies • 544 views

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ShannonM4 (California)
Posts: 30

Posted:

Posted By BenA2 on 12/19/2017 2:03 PM
"There is probably something in the CA state code stating when you can use executive session.

Generally you can go into executive session for personnel matters but board members are not usually considered personnel, although I have heard the argument that they are.

Items in litigation are another example of when it is ok to go into executive session but the you cannot go into executive session because something MAY end up in litigation. Otherwise, you could potentially go into executive session for anything.

As already mentioned, censorship does not serve much purpose but doing it in secret even makes it more ineffective. I would do it in open session as this is a matter that the membership has a right to be aware of. "

My board has the idea that as long as the Association attorney is present, anything cna be discussed in Executive. I have argued that this is not true, since that would bascially nullfy the "authorized topics" restriction as long as they were willing the pay the attorney to sit in (or even to be on the phone).

Can you elaborate on what the board can talk to the attorney about in Executive Session?

I thought it was limited to matters relating to CA CC 4935 (I am in CA) but one of them keeps saying that ALL conversations with the attorney MUST take place in Executive "so it will be covered under attorney-client priviledge" but I kinda think they don't know what they are talking about.

Anyone?
Please help... these people are seriously driving me insane...

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By ShannonM4 on 08/13/2019 11:20 PM
My board has the idea that as long as the Association attorney is present, anything cna be discussed in Executive. I have argued that this is not true, since that would bascially nullfy the "authorized topics" restriction as long as they were willing the pay the attorney to sit in (or even to be on the phone).

Can you elaborate on what the board can talk to the attorney about in Executive Session?

I thought it was limited to matters relating to CA CC 4935 (I am in CA) but one of them keeps saying that ALL conversations with the attorney MUST take place in Executive "so it will be covered under attorney-client priviledge" but I kinda think they don't know what they are talking about.

I agree with you, Shannon. It appears to me your Board is trying to unlawfully circumvent CA CC 4925 and 4935. Civil Code 4925 requires all board meetings to be open to all HOA members unless the meeting is an executive session. As you note, CA CC 4935 defines what is executive session material. For the archives, see

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4925
and
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4935

If for some reason the Board wants the HOA attorney present at meetings, this is fine. As long as the HOA attorney stays silent during open board meetings, then there is no need for an executive session. Subsequently if the HOA attorney has something to say, the Board may adjourn to executive session.

Your board may need a reminder of the penalties for violating the California HOA Open Meetings Act. See https://www.davis-stirling.com/HOME/Violation-of-Open-Meeting-Act

I think lack of transparency, in violation of the law, is one of the biggest problems with HOA Boards.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By AugustinD on 08/14/2019 7:30 AM
If for some reason the Board wants the HOA attorney present at meetings, this is fine. As long as the HOA attorney stays silent during open board meetings, then there is no need for an executive session. Subsequently if the HOA attorney has something to say, the Board may adjourn to executive session.

Interesting. Can't the HOA attorney speak to non-privileged issues during the open session?

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

Our HOA attorney occasionally attends open meetings and speaks about non-privileged issues. As part of their firm's annual retainer, he also attends the open board meeting w hold prior to the annual meeting & election. He also attends the organizational meeting after the election when the new board selects officers. there is no need for the attorney to be silent during open meetings of the board.

What does your attorney SAY about this topic, Shannon? Why does s/he seem to attend so many meetings?

It sounds like the board majority is trying to justify secrecy and closed meetings. But why?

RichardP13 (California)
Posts: 3,868

Posted:

I am curious as to exactly what the conversation between the attorney and the Board are causing you a coronary. First off, I am not a fan of attorneys, but maybe it's the attorney and not the Board that is saying the meeting should be held in Executive Session.

In ten years, as either a Board member, Board president or property manager have I ever had an attorney present at any meeting, open or executive, at over 120 associations. And then sending them a reminder about violating the OMA, please, the attorney will chew you up and spit you out.

While transparency is a problem, what causes that? Accountability. I have lived in a HOA with 317 homes. From its inception in 2001, they had one election where they actually counted ballots. From 2002-2009, never opened a ballot, and you only got on a Board if you were appointed by either the PM or the attorney. I have managed a couple of 200+ unit HOA's. Same thing, no elections because they couldn't reach quorum, even if reduced.

Speaking for California alone, there is no regulatory agency that governs HOA's. Yes, we have the Davis-Stirling section of Civil Code and Corporation Code, but if a homeowner has a issue their only recourse is Small Claims, and quite frankly, that is a joke. There is a list of issues that can be taken to the Attorney General, but he's too busy running background checks on people buying a box of .22 ammo at WalMart.

Best of luck to you.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By NpS on 08/14/2019 8:38 AM
Can't the HOA attorney speak to non-privileged issues during the open session?

-- I was trying to imagine in what instances the HOA attorney might speak in open session without there being legal questions for doing so. For example, if anyone in the audience is possibly a legal adversary, then the HOA attorney is not supposed to be speaking without massive disclosure as to who her client is. Otherwise, the HOA attorney would appear to be giving legal advice to an unrepresented legal adversary of her client. The latter violates the rules of professional conduct. There is a bit of case law, specific to HOAs, on the point, but I cannot pull it up quickly.

-- I have seen HOA attorneys declare xyz at an open board meeting, when in fact xyz was zealous representation of the Board and not based in an objective view of what the law says. If the HOA attorney does not disclose that she represents the Board's view and not an objective view of the law, then I think the members in attendance are going to misunderstand. From reading here and my own education in HOA issues, I think it is usual for the HOA membership to think that the HOA attorney will speak 'the truth of the law' to them. But nothing could be further from the truth. In fact, the HOA attorney is obliged to defend any position (short of a crime) a Board may adopt, using any distortion of the facts (and outright lies and speculation) she or he chooses.

-- Then there's the problem of whether what the HOA attorney says does breach even remotely attorney-client privilege.

-- Years ago I know of a HOA attorney who was writing HOA members intimidating letters informing them of "the law" (that is, his take on it in zealous advocacy for the board) in great detail. The HOA attorney was not disclosing that he was representing the HOA via its Board and was required /not/ to give an objective view of the law. The members he was writing were unrepresented. The HOA attorney was effectively giving "legal advice" to an unrepresented person. This violates at least one rule of professional conduct. At some point a member called the HOA attorney out on it. The HOA member asked the Board to please stop wasting money on the HOA attorney's letters, since the letters contained a legal position that necessarily zealously advocated for the board's point of view. The letters did not reflect an objective opinion of the law. Hence, wrote the member, the member could not believe a word of what the HOA attorney wrote him. The HOA attorney changed the style of his letters.

-- Where I am, this arises with City Councils and the City Attorney as well. As I posted here not long ago, a year or so ago I remember the City Council asking the City Attorney in an open-to-the-public meeting what was correct legally on a certain issue on which the Council was about to vote. The City Attorney responded flatly: 'I will defend any position the City Council chooses to take.' (Granted a prior City Attorney was much more willing to put his own objective view on the public record.)

-- This California site says attorneys do not have a right to attend open board meetings:
https://www.davis-stirling.com/HOME/Lawyers-at-Board-Meetings

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RichardP13 on 08/14/2019 9:02 AM
Speaking for California alone, there is no regulatory agency that governs HOA's. Yes, we have the Davis-Stirling section of Civil Code and Corporation Code, but if a homeowner has a issue their only recourse is Small Claims, ...

I find Davis-Stirling statute's requirements for internal dispute resolution,and then mediation or arbitration, to be powerful. I think competent HOA attorneys know they better dot every i and cross every t to comply with these requirements, or else they will lose if the dispute gets to court. The fine for violations of the Open Meetings Act also appears to me to be powerful.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By AugustinD on 08/14/2019 9:47 AM

What have you been smoking?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RichardP13 on 08/14/2019 10:44 AM
What have you been smoking?

The crappy HOA/condo laws in my state (which is not California).

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By AugustinD on 08/14/2019 9:43 AM

Posted By NpS on 08/14/2019 8:38 AM
Can't the HOA attorney speak to non-privileged issues during the open session?

-- This California site says attorneys do not have a right to attend open board meetings:
https://www.davis-stirling.com/HOME/Lawyers-at-Board-Meetings

THAT IS NOT what that says! It says, that an attorney, who is not a member of the association, can't attend with or without the member present. It also doesn't allow Bozo the Clown or Mother Teresa to attend either, IF they aren't members.

The site also says, without any proof, that a lawyer, who is a member can only only attend as a member, not as a lawyer. That is pure BS. This is where HOA's get into trouble. Let's say a member who happens to be a CPA, attends a meeting and notices something fishy about the financials. They ask a question based on their knowledge as a CPA, not as a member. Let's do one better. A member, who is a property manager, attends a meeting in which the association's attorney is in attendance. The member notices a $99K legal expense for one month on the income statement and asks why the HUGE increase month over month. The director at large says from "liens and foreclosures". Now the attorney didn't say anything, knowing their firm was involved in a costly lawsuit against a renter that was instigated by the director at large and two of their neighbors, along with the new management company.

My question is, you're not allowed to attend meeting with the knowledge you have gained with your profession. If that is the case, would that hold true for Board members? I understand why the attorney on the web site states what he does, because they feel threatened when challenged.

Back to the OP issue with non-privileged topics being discussed in ES. Let's say every third Thursday is the monthly Board meeting. The ES is held at 6:30 PM and OS starts at 7:30 PM. The agenda is light today and everything "legal" is wrapped up by 7:00 PM, so chit chat starts and a discussion starts about holding a XMAS party 4 months from now. The discussion wraps up at 7:25 PM. Anyone have a problem with that?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Richard & Augustin

I read the cited section from DS and the explanatory notes to the Rules of Professional Conduct that aren't listed on the DS site.

Here are my thoughts:

1. The requirement that a member attend as a member and not a lawyer is a statement of capacity. The lawyer (or the CPA or the management co owner) does not have to check her expertise at the door. She can say that as a lawyer she believes xyz. But when she does that, she's still acting in the capacity of a member with no greater rights than any other member. The limitation is that she cannot undermine the basic tenet - that one person cannot attend in a representative capacity for someone else.

2. I do not believe that the restriction on attorney behavior applies to the HOA lawyer in the way you may think. I do agree that the HOA lawyer's presence will intimidate, and that's probably why the lawyer is invited in many cases. But, even if the HOA lawyer pre-states who he represents, I think most people won't get what he's talking about. They are going to believe that he is stating the law no matter what he says. Then again, he's the HOA lawyer, and it's an HOA event. People should figure that out.

3. The only issue I see that's a possible wrinkle in the DS page is a situation where there is actual legal correspondence between the HOA lawyer and an owner's lawyer already. That issue should be avoided no matter what unless the opposing lawyer agrees. But beyond that, I don't see any violation of the HOA lawyer speaking to the owners at the meeting.

4. I don't know why an HOA would want to waste money having the HOA lawyer attend unless there's a document that needs explanation or something like that.

5. I think that CA does a nice job of distinguishing between what's privileged and what isn't. The HOA lawyer should be able to steer the BOD in the right direction as far as what gets said in open session.

Sikubali jukumu. Read all posts at your own risk.

KerryL1 (California)
Posts: 14,550

Posted:

The OP asked about the HOA lawyer and that's how I answered. I agree with NpS that usually, "4. I don't know why an HOA would want to waste money having the HOA lawyer attend unless there's a document that needs explanation or something like that." That's the kind of case our Board would invite the HOA lawyer to attend an open meeting of the board.

I also gave two example above of when he attends. It is by board invitation and he sits with the directors. On time he explained new legislation in CA about our community room usage and flyers under residents' doors.

His retainer includes unlimited phone calls, attending eh annual meeting & see my above, plus one additional meeting of the board. th latter usually has been an actual executive session matter.

RichardP13 (California)
Posts: 3,868

Posted:

Until the OP responds, we are just making stuff up while passing time.

KerryL1 (California)
Posts: 14,550

Posted:

I agree, Richard, but I think what IS clear is she's taking about the HOA lawyer, not some other kind. Help us out, Shannon.

RichardP13 (California)
Posts: 3,868

Posted:

I saw where annual budgets were discussed, voted on and passed in ES, WITH the attorney present. I was at a meeting where the attorney told the audience that proxies were no longer allowed in our association. I was at a meeting where the attorney told that the election had to be cancelled because the people who voted by mail but did not show up to the meeting were not given the opportunity to vote to adjourn. People tend to believe anything an attorney tells them, because????

KerryL1 (California)
Posts: 14,550

Posted:

I just don't get the point of your last post, Richard. Are you saying that no one reading this forum should trust their HOA's general counsel?

Though I've found our HOA attorney' written opinions to have been a little flawed sometimes, their announcements at open meetings about general matters like new legislation has never been incorrect in 14 years in my HOA.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By RichardP13 on 08/14/2019 5:07 PM
I saw where annual budgets were discussed, voted on and passed in ES, WITH the attorney present. I was at a meeting where the attorney told the audience that proxies were no longer allowed in our association. I was at a meeting where the attorney told that the election had to be cancelled because the people who voted by mail but did not show up to the meeting were not given the opportunity to vote to adjourn. People tend to believe anything an attorney tells them, because????

There are jerks, slimeballs, and incompetents in every profession.

Maybe that's the case here. Maybe not.

Sikubali jukumu. Read all posts at your own risk.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By NpS on 08/14/2019 5:17 PM

There are jerks, slimeballs, and incompetents in every profession.

Maybe that's the case here. Maybe not.

And we tell others to use their website all the time.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RichardP13 on 08/14/2019 11:34 AM

Posted By AugustinD on 08/14/2019 9:43 AM

Posted By NpS on 08/14/2019 8:38 AM
Can't the HOA attorney speak to non-privileged issues during the open session?

-- This California site says attorneys do not have a right to attend open board meetings:
https://www.davis-stirling.com/HOME/Lawyers-at-Board-Meetings

THAT IS NOT what that says!

The site says, "Lawyers representing members or non-members do not have a right to attend board meetings--the right to attend is reserved to members only. (Civ. Code §4925; SB Liberty v. Isla Verde.)" Take your objections up with the attorneys who author the aforementioned site.

RichardP13 (California)
Posts: 3,868

Posted:

Please, take responsibility for what you wrote!

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By RichardP13 on 08/14/2019 8:25 PM
Please, take responsibility for what you wrote!

If you are not going to read the context, and the citation, then I think that's your problem.

It's silly to read what I wrote as saying members who are attorneys cannot attend.

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