California HOA Executive Board Sessions

Anyone ever dealt in California with an HOA Board constantly calling for "Executive Sessions" to discuss matters away from the homeowner membership? CA law allows for Executive Session Board Meetings for Member Discipline which is generally considered to be a discipline matter against a specific homeowner which is private in CA. Now the Board wants to have talks about whether to enforce or not enforce Parking and Architectural Guideline Rules and CC & Rs. Thus hiding that discussion from the Community via a Board Special Session- Member Discipline. Any thoughts? And yes 1 Board Member is in clear violation of the rules (parking) and under CA law should be conflicted out of the discussion and vote but the Board President and Management Company are getting around this 'conflict' by refusing to ever issue that Board Member a parking violation notice.

AugustinD- thank you for taking the time to answer. The issue is that I am very well versed with Davis-sterling. The Statute simple lists “member discipline”. Most commentary indicates that would concern an actual member being disciplined for a rule infraction which is not the case here. The issue is the Board trying to get out of enforcing Operating Rules/CC&Rs by holding a rule enforcement discussion under the caption of “member discipline “. I do not have access to Lexis-Nexus and was curious if anyone had direct knowledge of California case law defining just what ‘member discipline’ included.

Say, David, you wrote the Board will hold a "Board Special Session- Member Discipline." This title doesn't say it's an executive session. So I'm curious to know why you think it is. Now, if is IS an executive session that must be stated on the agenda which must be posted 2 days ahead of an executive session for Owners to see.

See your Bylaws for "special meetings of the Board." These are held now & then when a board wants a thorough discussion of a particular topic. They ARE open meetings. Visit Davis-stirling.com and look up board meetings to understand the differences among different kinds of meetings.

If this really IS an executive session, you are correct. This apparent discussion is of policy and not any individual disciplinary matter and must be discussed in an open meeting of the Board.

Btw, the director whom you say is in violation wouldn't recuse themself from an open discussion about the rules, ARC requirements or CC&Rs. Since you're familiar with Davis-StIrling, you know that the board cannot change any CC&R without owners voting to approve he amendment.

also not that alleged violators must be invited inter to a hearing in excessive session too pled their case. And it's the Board that decides whether to fine the alleged violator or not. The Board prez & PM do not have that authority in CA.

Ten seconds on casetext.com. About seven appeals court decisions nationwide use the phrase "member discipline" and "executive session". Some of these are in California. None look like they have anything useful.

Search
https://law.justia.com/cases/california/supreme-court/
and
https://law.justia.com/cases/california/court-of-appeal/

as well. I am coming up empty handed.

The better search is probably for civil code section 4935. I still come up empty-handed.

Mostly though:

The experience at this forum is that, as long as the other side is using an attorney who will argue whatever he wants (or is commanded to argue) right up until you file suit, then an owner's or director's appeal to the law and reason will often fail. It's a mistake to think any precedent you pull up will be the magic words or psychology to undo the will of the herd.

Best approach if one does not want to move: Get like-minded people to win a majority of seats on the board. It's labor-intensive. Often this only remedies things for awhile.

AugustinD- Thank you. Now, the bigger question is what and hell was I reading (and misreading)? Going back to the CA Code . Thank you!

David, see the Davis-stirling.com discussion on member discipline in executive session, this attorney write that most HOA do hold hearing in executive session for a variety of reason.

But member discipline clearly means of individual members of the association. It does NOT mean a discussion about what rules, etc. to enforce and how.

back in '06 our membership voted out a highly secretive board that managed to put so many items in executive session that it was disgusting. Some others & I were elected and for the next 10 years, we held meetings properly and openly. THEN, 2 attorneys got on the Board and many agenda items were transformed into "Contracts in Formation." Or "personnel maters," even though committee, members, e.g., are NOT personnel. I became outnumbered. I urged the board to stop the secrecy. And they made a couple of harmful decisions. I didn't seek re-election for '19 and gathered likeminded owners so that we could, with honest, careful campaigning, and did defeat 3 (of 7) of the secretive directors to start in '20. A 4th, outnumbered, resigned.

This also is what Augustin advises above: "Best approach if one does not want to move: Get like-minded people to win a majority of seats on the board. It's labor-intensive..."

Do not waste your time trying to find case law to support your contention that a discussion & possible vote about member discipline POLICY is NOT appropriate for executive session in CA, and in most states.

What size is your HOA & Board, David? Do you have any allies on the Board?

Btw, why is this Board so secretive? How is the HOA attorney "tied to" the MC?