Executive Session in Virginia

Our board has a lot of executive sessions. Usually these are after the regular business meeting and it has been observed that the Architectural Review Board is most always present. The board makes a motion to adjourn and go into executive session. No general statement is given on the subject being discussed, or if a decision was made that involves funds or not. The latest meeting was a "special" meeting to discuss "legal matters." Is there a requirement to be more specific, such as: to discuss a violation of the ARB rules, or to discuss contract negotiations for maintenance services? Is there a requirement to disclose motions passed during the meeting? Such as to proceed with ARB violation actions at a cost of $$, or to award a contract, etc. I understand there are valid reasons to protect privacy of members, etc.

BH:

Per VA § 55.1-1816:

The motion [to go to executive session] shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The board of directors shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion. No contract, motion, or other action adopted, passed, or agreed to in executive session shall become effective unless the board of directors or subcommittee or other committee of the board of directors, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion, or other action, which shall have its substance reasonably identified in the open meeting. The requirements of this section shall not require the disclosure of information in violation of law.

Per Fairfax County Community Association Guide (which is not a statute but a guide/example for VA Associations):

A closed executive session is only one part of an open Board or membership meeting.
During the open meeting, a motion identifying the specific subjects and reasons for a closed executive session must be made, seconded, approved, and recorded in the
minutes. It is a violation of state law to convene and conduct a closed executive session
prior to the start of any meeting. It is also a violation to “adjourn the meeting to go into closed executive session” because following the closed executive session, the Directors must reconvene in the open meeting. Any agreement or decision resulting from the
closed discussions must be voiced and substantially identified and voted in the
reconvened open meeting for purpose of recordation in the minutes. While agreements
can be decided, no votes are permitted in such closed executive session because the
laws prohibit secret voting on Board matters. The Board could risk a lawsuit by enforcing
a closed executive session decision that was not substantially identified and recorded in
a reconvened open meeting and not publicized to the Association members.

In my opinion, a generalized purpose of the meeting noted in the minutes would be fine. Example: Legal matters, violations.

However, any vote (and I think this is the issue you are eluding to) must be recorded in the open meeting minutes. Example: Having met in executive session, a motion is made to foreclose on lot xxx, the motion was seconded by abc and a vote of x yeas and y nays was taken. Motion passed/failed.

Forgot to add that this refers to my state, and other states are different.

Glad you added that.

If you read the citations or follow the links in my previous posting, you would see that this is not the case in Virginia (which is the OPs State).

What I wrote came from attorney's that represent associations in my state, Washington State.

They acknowleged that it is difficult to make the decision (not discussion) about a homeowner in open session and maintain privacy, but suggested that we reference the homeowner by the account number or lot number rather than address or name, and that will help maintain privacy. Since no minutes are taken in executive session, the only way to document the decision is to make the decision in open session where minutes are taken and the decision is recorded in the minutes.

The attorneys did point out that the compliance log and the delinquent account log are both records that can be viewed by homeowners, so there really isn't privacy on these issues from homeowners who are nosy.

Note that in my original post, I said that discussions happen in executive session while decisions are made in open session. It is important to note how I am separating the two. It is possible to discuss in executive session, and then vote on the decision in open session.

Examples of how we vote in open session:

Motion to be introduced: "Account 12345 should be fined from here for non-compliance in accordance with our violation policy." All in favor; all against, motion carries

Motion to be introuced: "Account 12345 should be send to our legal firm for handling of collections." All in favor, all against motion carries

Motion to be introduced: "Account 12345 is proposing to pay $800 per month to pay off delinquent account." All in favor, all against, motion carries.

The attonery's that I have heard this from have been very clear that our meeting minutes are records of decisions that are made, and do not have to be clear to homeowners for them to be appropriate minutes. They simply have to accurately record the decision made, such that a board member or judge could look back upon them and understand what decision was made. They highly encouraged "non-transparent" minutes for subjects that are sensitive.

With regards to discussions, the attorney's have reminded us many times that minutes are primarily a way to record decisions. Since no decisions are made in executive session, discussions about pending legal or threatened lawsuits does not need to be documented in meeting minutes. The only thing that needs to be document is decisions that are made (primarily, I am sure there are a few exceptions).

The same attorneys said that if a homeowner records records, say noise violations for the past five years, we're perfectly legal to hand them three bankers boxes of records and say "here you go, now go find the ones you are looking for!" which seems slightly shifty to me, but is apparently a legal and compliant way of doing business.

In my state, which is probably the same as Virginia, no information should be disclosed to members from what is discussed in executive session. Executive session is a private time for the board to discuss sensitive manners that is not on the record, no homeowners are present, and is not included in meeting minutes. Thus, no information about what takes place in executive session should be shared with homeowners.

However, no decisions should be made in executive session.

I found this here

https://law.lis.virginia.gov/vacode/55.1-1816/

“ C. The board of directors or any subcommittee or other committee of the board of directors may (i) convene in executive session to consider personnel matters; (ii) consult with legal counsel; (iii) discuss and consider contracts, pending or probable litigation, and matters involving violations of the declaration or rules and regulations adopted pursuant to such declaration for which a member or his family members, tenants, guests, or other invitees are responsible;

or (iv) discuss and consider the personal liability of members to the association, upon the affirmative vote in an open meeting to assemble in executive session. The motion shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes. The board of directors shall restrict the consideration of matters during such portions of meetings to only those purposes specifically exempted and stated in the motion.

No contract, motion, or other action adopted, passed, or agreed to in executive session shall become effective unless the board of directors or subcommittee or other committee of the board of directors, following the executive session, reconvenes in open meeting and takes a vote on such contract, motion, or other action, which shall have its substance reasonably identified in the open meeting. The requirements of this section shall not require the disclosure of information in violation of law.”

So you must state the reason foe going into executive session, that’s the only requirement I see. You can’t say stuff like going Into executive session to discuss “personal” matters that doesn’t meet the requirement.

You cannot go into executive session saying to “discuss management issues” you must say personnel matters for management.

Plus, for Meeting Minutes, regardless of whether the Meeting is open to owners or an executive session, best practices is to record only the motion and vote count and not discussion.

Virginia's statutory requirements are certainly interesting. I like how they promote transparency.