Homeowner-attorney announced HOA is violating the law!

At our last meeting, a homeowner-attorney (arch critic, former President, and also a poor quality attorney in my opinion) announced that we are violating the law by talking about subjects in executive sessions that are not permissible to discuss in executive session. This attorney then rattled off sections of Washington State law as it relates to HOAs and executive session. The four categories of topics that we are discussing in executive session but the three topics are:

- Compliance
- Delinquent accounts
- homeowner hearings
- potential legal action

My arch critic, this attorney, tends to make up a lot of stuff. I know that this spewing of RCWs and this threat about abuse of executive session is another failed attempt to have me off the Board. Other homeowners - and potentially Board members - are less confident. After all, she cited Washington State Law and she is an attorney, thus, maybe she is correct and we should listen to her?

I am wondering if there is any action that I should take as a result of her claiming that the Board, under my direction, is abusing the executive session privilege and out of compliance with state law as it relates to HOAs.

First off most of these items we discussed openly in our meetings. No executive meeting needed. Plus if you ever read a corporate "prospectus" this is openly available for any shareholder of the corporation.

- Compliance - Why is this a secret? Your job is to enforce compliance. It's pretty obvious as the nose on your face if something isn't. Letting members know you recognize something not in compliance or being brought into compliance brings more trust. They see that HOA isn't sweeping things under the rug.

- Delinquent accounts - We discussed this in generalities like using the Lot#. We just said we collected from 100 owners out of the 107. We then stated if we were pursuing collections such as lien or they have not met the threshold to do so. (6 months we lien). What other details does one need to know?

- homeowner hearings - I don't think these are to be private for the most part. We told people to attend our meetings if they had an issue. If they choose to write a letter, then we would read that outloud at our meetings. That also meant that what decision we made based on that letter is what they have to deal with. So come speak up or sit down to wait on a decision we make for you.

- potential legal action shared such as possible lawsuits/losses etc - The conversation between attorney and client are kept confidential. Which in our setting it was me who discussed issues with our attorney (if needed). We discussed as a board what questions they may have to ask. However, I was the POC to the attorney. That is when client confidentiality was involved. Otherwise every member had the right to know if we were threatened to be sued and for what. They are part of the lawsuit after all. Should know the situation and how it's being handled. Would you not want to know you were subject to a potential lawsuit? Then why is the membership not?

Your Arch Rival has a point... You may want to change your perspective because it's coming across as "sketchy, controlling, and secretive". None of which makes your membership want to participate.

Michael, with all respect, this is not a matter of what you believe "in your mind" but what is consistent with your governing documents and state law. I would be pretty confident that your documents and state law both describe what can be held in executive sessions and what must be held in open meetings. I would familiarize yourself with them so you can either a)thank the guy for pointing it out and complying, or b)thank the guy for his input but politely explain how the subjects you are discussing are in compliance.

It's not really subject that can be argued, except for perhaps very fine points.

State law is easy to read, as follows:

"the board of directors may convene in closed executive session to
consider personnel matters;
consult with legal counsel or consider communications with legal counsel;
discuss likely or pending litigation, matters involving possible violations of the governing documents of the association,
and matters involving the possible liability of an owner to the association

I consider the delinqucies, hearings, and compliance violations to all be "matters involving possible violations of the toverning documents of the association".

Delinqucies in particular also are discussing likely or pending litigation as we are voting to send them to legal counsel for legal collections and/or foreclosure.

First, read aloud this Washington HOA statute section, from https://app.leg.wa.gov/RCW/default.aspx?cite=64.38.035 :

(4) Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners. Upon the affirmative vote in open meeting to assemble in closed session, the board of directors may convene in closed executive session to consider personnel matters; consult with legal counsel or consider communications with legal counsel; and discuss likely or pending litigation, matters involving possible violations of the governing documents of the association, and matters involving the possible liability of an owner to the association. The motion shall state specifically the purpose for the closed session. Reference to the motion and the stated purpose for the closed session shall be included in the minutes. The board of directors shall restrict the consideration of matters during the closed portions of meetings only to those purposes specifically exempted and stated in the motion. No motion, or other action adopted, passed, or agreed to in closed session may become effective unless the board of directors, following the closed session, reconvenes in open meeting and votes in the open meeting on such motion, or other action which is reasonably identified. The requirements of this subsection shall not require the disclosure of information in violation of law or which is otherwise exempt from disclosure.

Second, state your opinion that compliance matters involving specific owners are executive session items, and that the HOA attorney has agreed [do get the approval of the HOA attorney first].

Third, consider stating your concerns about liability if the HOA did as this owner/attorney proposes; how you will not risk this liability; and you are sorry to hear that this owner/attorney would.

Fourth, consider having the HOA attorney contact this owner/attorney and inform this owner/attorney that the HOA attorney's understanding is that an attorney speaking at Board meetings without identifying the extent of her representation of the HOA or the owners may be violating certain attorneys' Rules of Professional Conduct.

Fifth, I for one happen to think it's a big deal when an owner/attorney shows up at a meeting and starts throwing her or his weight around, (ab)using her credentials as an attorney to assert such-and-such, when in fact the Rules of Professional Conduct strictly IMO prohibit such conduct.

I was just gonna add defamation possibility," but see Augustin beat me to it. But I'm not sure I read "liability" in the statutes the same way. I think it might mean that owners are liable for any damage to the common areas

Many states include the same topics as WA, Michael. Matters of owner discipline, usually violation of the rules and often of arch. requirements, are in executive session.

What statue did the woman cite to show that these topics may NOT be discussed in ES?

( it does not matter what Melissa's board did in AL many years ago.)

I thought you didn't really care what your rival thought, but it sounds like she's hit a nerve. You also moaned about the job being thankless anyway, so I don't know what you want us to say. You've been on the board long enough to know not everyone will agree with what you're doing. You can't control why they think, but you can be transparent in what you're doing and why.

What's your real problem- don't like to be questioned? Cry me a bloody river - did you think everyone would stand around and let you do whatever you wanted, just like your board colleagues? Somehow I suspect they're enjoying this - assuming they're as do nothing as you keep saying they are.

I said in another conversation that I thought this lady might have a point about executive sessions. As Melissa noted, you can use account numbers when discussing delinquencies- the only one homeowners should know is their own. Homeowner hearings on CCR violations and sessions with the attorney on legal actions are ok for executive sessions, although those should be rare.

Maybe you should start with talking to the association attorney about executive sessions and get some guidance on when the board will have them and how to discuss certain issues in open meetings without violating Homeowner privacy. He ir she could even draft a letter that could be sent to the homeowners explains the board's new policy (because you send your colleagues will first discuss and vote on a resolution establishing said policy in an OPEN meeting). How hard is that?

If the rival doesn't like it, she can voice her objections - let her explain why everyone should know Mr. X is about to be sued for repeat violations of community rules concerning trash. If she decides to run against you in the next election, so what? If you win, hooray. If not, you can go back to whatever you were doing before board membership and you'll get to nitpick HER performance.

I agree Shelia, that MichaelT's board MAY disclose that it fined acc # xx if the Board wants to. There IS no legal requirement to do so so far as I know. They can if they wish vote on this inline in an open meeting. But aren't required to. I don't know about WA, but in CA the Board MUST vote in an open meeting to lien a parcel.

In CA, in an open meeting the board must disclose, as Max points out, the general nature of executive session business. The is summary could include, "an owner was fined for repeated violation of the trash container rule. An owner was fined for parking violations. " Does WA, MichaelT, have a required disclosure of executive session that you present at the next open meeting?

The Board's discussion, deliberation, etc. to fine or otherwise discipline an Owner should be in executive session. Often a hearing IS involved and should be in executive session.

I like Shelia's idea to have the HOA attorney write to members with his opinion about the owner discipline topic.

MichaelT's occasional questions about whether he should be reimbursed for small expenses, Max, does show he wants to be "paid." And how would that, anyway, tie into woman's desire to know who who was disciplined?

My take is different and 'Ive related my question to Michael a lot.He doesn't reply. Isn't this woman the one who prompted Michael's "thankless job" subject and, I feel confident, a few of his others?