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RogerJ1 (Texas)
Posts: 550
Posted:
A current board, looking through previous board records, releases findings to specific members - wrong to do? Illegal?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Is there such a thing called the "HOA police"? What do you mean by releasing this information? Need some more details as that is pretty general.

Former HOA President
KerryL1 (California)
Posts: 14,550
Posted:
What kind of "board records?"
KerryL1 (California)
Posts: 14,550
Posted:
Oh, executive session "records." Definitely against my HOA's bylaws
ElleN (Idaho)
Posts: 4,420
Posted:
It depends. Should whatever was released never have been done in executive session in the first place?
KerryL1 (California)
Posts: 14,550
Posted:
Based on case law, from Davis-stirling.com., Index, Executive Session: The CA HOA lawyers at this site write that: "For most executive session matters, confidentiality should extend indefinitely. This includes personnel matters, an owner's delinquency payment plan, disciplinary actions, and attorney-client privileged communications."

"Consequences. If an individual director discloses confidential information without prior board approval, that director is acting outside his/her scope of authority and could be personally liable for claims of defamation, invasion of privacy, violations of statute, etc. Any judgments against the director would likely not be covered by the association's insurance."

"Disciplinary Action. Directors who reveal confidential information without board approval can be disciplined."

And "A member ...can be punished under disciplinary procedure if he violates the secrecy of an executive session. Anyone else permitted to be present is honor-bound not to divulge anything that occurred. (Robert's Rules, 11th ed., p. 96.)." Note most states or assn. bylaws do not require Boards to use Robert's Rules (RONR), but boards often still use it as a guide when their bylaws are silent.
MaxB4
Posts: 3,513
Posted:
I would go back to what Augustin said, Should whatever was released never have been done in executive session in the first place?
KerryL1 (California)
Posts: 14,550
Posted:
Hold it, Rodger. A board can vote to release particular Executive Session information. But that info should go to all Owners who want to review it. What do you mean released to "specific members?" What IS the content? Personal info about Owners? Evaluations particular employees of vendors? Attorney-client privileged stuff?

A decent current Board could in fact vote to release many items of business conducted by previous boards if they should NOT have been discussed in ES. They also could vote to release info about legit ES matters that no longer require confidentiality.
SheliaH (Indiana)
Posts: 6,964
Posted:
Start with Max's question - what was the subject of those meetings? As you know from reading conversations on this website, executive sessions should be rare and limited to sensitive issues like discussing litigation against the association, board member discipline, or appealing a CCR violation. How did you find out anything was released to certain people at all? Were YOU the subject of whatever was released and who received the information?

If you heard about all this second or third hand (or more), you might want to notify the board and strongly suggest they find out what's going on - someone else may have released information (perhaps a former board member who's salty about one thing or another).

If something was discussed in executive session that should have been in an open board meeting, go to Kerry's suggestion - the board should make that information available to everyone, apologize profusely, and then check the documents to see what it says about an executive session. If there isn't anything, the association attorney can assist with establishing a policy and then that policy should be made available to everyone. Executive sessions shouldn't be about hiding anything, but they should be used as a way to discuss difficult and sensitive issues while ensuring the privacy of the parties involved (e.g. if it's a delinquency issue, would YOU want everyone to know you haven't paid your assessments in 3 years and are about to be foreclosed on?)

Personally, if something was deemed appropriate for an executive session, I would keep the details of that meeting confidential indefinitely.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Quote:
Posted By SheliaH on 02/15/2023 1:52 PM
Start with Max's question - what was the subject of those meetings? As you know from reading conversations on this website, executive sessions should be rare and limited to sensitive issues like discussing litigation against the association, board member discipline, or appealing a CCR violation. How did you find out anything was released to certain people at all? Were YOU the subject of whatever was released and who received the information?

If you heard about all this second or third hand (or more), you might want to notify the board and strongly suggest they find out what's going on - someone else may have released information (perhaps a former board member who's salty about one thing or another).

If something was discussed in executive session that should have been in an open board meeting, go to Kerry's suggestion - the board should make that information available to everyone, apologize profusely, and then check the documents to see what it says about an executive session. If there isn't anything, the association attorney can assist with establishing a policy and then that policy should be made available to everyone. Executive sessions shouldn't be about hiding anything, but they should be used as a way to discuss difficult and sensitive issues while ensuring the privacy of the parties involved (e.g. if it's a delinquency issue, would YOU want everyone to know you haven't paid your assessments in 3 years and are about to be foreclosed on?)

Personally, if something was deemed appropriate for an executive session, I would keep the details of that meeting confidential indefinitely.

I agree. Confidential indefinitely.
BillH10 (Texas)
Posts: 1,217
Posted:
As far as I'm concerned, a present Board should have no more casual access to previous ES Board meeting minutes than any other owner as that is what they are now, and were at the time if they were owners when the ES took place. Being a present day Board member does not confer any privileged "snooper" status vis a vis old ES records.

I realize subsequent events can result in the need to reopen old ES records, in that case a single Board member (and perhaps a Board member who was involved) and another person, such as the PM, and possibly the attorney should be the only persons who can review previous ES records. They should have a very tightly defined reason for examining the records and should be allowed access only to those records relevant to the issue at hand. The records should be tightly guarded, those participating should be required to sign non-disclosure agreements.

The wording of the OP seemed to suggest the present board was looking through old records for fun as if they were old photographs.
KerryL1 (California)
Posts: 14,550
Posted:
Interesting point, Bill. Directors in my HOA always have had access to old ES directors reports (packets) and meeting minutes. I can see sometimes needing to review something, e.g., the Boards accepting bids for a prjoject and a director says " I think they bid on a similar project for us a while back, and we rejected them. I can't remember why." So a curious director might look for that meeting or meetings' minutes.

Two years ago, when I got back on the board after a "gap year," I wrote an executive session agenda item that involved potential litigation. I sought the OK from the board to ask our HOA attorney's advice on an earlier project--exterior paint of our twin high rises over 3 years prior Some paint was chipping. Worse, a huge 25 story X 20' section of exterior architectural metal cladding had become stained and very unsightly after the paint firm had tried to restore its luster. While we were out of warranty, the statute of limitations hadn't run, I felt. The board agreed. BUT I had to collect of bunch of emails between the PM, board president, an other executive session docs re: the bid, etc.to submit to our GC (general counsel). This required that I search some old ES agenda item and minutes and ultimately a few ES board packet materials.

This is on my mind because TODAY, the PM eblasted owners & all residents that Xxx Painters would be on swing stages to handle "warranty work" on chipped or peeling paint here & there. (The stained metal issue was handled a year ago). Fine with me that the PM not say due to pressure from out attorney, etc. "Warranty" is good. Biil suggests that one director, and it made sense it was me, should through the old ES materials. Others would not even know what to look for, in fact.

I served two years and didn't seek reelection. This means I'll never know how much money our HOA saved since the Painters did a lot of work, which also involved two periods with swing stages that have to be certified before use. I suspect it's well into 5 figures. It does seem to to me once the work is complete, that the Board could release the amount that we saved as in executive session materials, which I'd think would please owners.

Anyway, also with Bill, it does seems to be there is no good reason to dig through such records unless needed for the benefit or the association. But Rodger hasn't replied yet with clarifying info.

To me that the Board MIGHT be revealing personal truly confidential matters is really important. I don't think it matters much if they possibly are revealing stuff that should have been in open meetings. First, what would be the point? To show that an old Board was sleazy? How would that info serve the assn.???
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By BillH10 on 02/16/2023 1:08 PM
Being a present day Board member does not confer any privileged "snooper" status vis a vis old ES records.
Executive Session records are Minutes and nothing more. If they are properly done, then the body of the Minutes contains motions and votes on motions and nothing more. Even for hearings of owner violations.

My recollection is that some state statutes (and possibly some bylaws) confer an absolute right of directors to view all records of a HOA or COA.
KerryL1 (California)
Posts: 14,550
Posted:
Good reminder, ElleN. In CA directors may review many executive session records but there are several caveats. In a nutshell, "...If a director has a conflict of interest or seeks to invade the privacy rights of others or seeks records for an improper purpose, the board should consult legal counsel before releasing records to the director." see davis-sgtirling.com Records, Directors rights to inspect. Texas statutes may be similar, but we don't know that.

Executive session records contain more than only meeting minutes. In my HOA and I'm sure in most, directors receive "board packets" or "directors reports" or similar prior to meetings including executive session. These are filled with bids, reports and confirmation and photos of rules violations, records of dues payments and delinquencies, evidence or requests about potential litigation, the PM's evaluations of staff or vendors, and on & on. Every scrap in these reports or packets are strictly confidential and may be read by directors & the mgmt. team only.

RogerJ1 (Texas)
Posts: 550
Posted:
Quote:
Posted By KerryL1 on 02/15/2023 11:40 AM
Hold it, Rodger. A board can vote to release particular Executive Session information. But that info should go to all Owners who want to review it. What do you mean released to "specific members?" What IS the content? Personal info about Owners? Evaluations particular employees of vendors? Attorney-client privileged stuff?

I am not exactly sure because it is hearsay but from what has been said: A previous board, under direction of an attorney because there is no fee schedule, researched the property deeds of chronic violators in order to see what suit could be started to require curing the violations. A year or two later, the current Board, possibly to gain favor in upcoming votes, released the Board notes on those affairs to the still upset violators.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Release the Kracken! If the old bod didn't want people to read them latter on they should of burned them

vis ta vie
BillH10 (Texas)
Posts: 1,217
Posted:
Wendy

In Texas, and probably most other states, a Board can do no such thing as destroy meeting minutes as Board meeting minutes must be retained for a statutory period, if not indefinitely.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By KerryL1 on 02/16/2023 5:52 PM
Good reminder, ElleN. In CA directors may review many executive session records but there are several caveats. In a nutshell, "...If a director has a conflict of interest or seeks to invade the privacy rights of others or seeks records for an improper purpose, the board should consult legal counsel before releasing records to the director." see davis-sgtirling.com Records, Directors rights to inspect. Texas statutes may be similar, but we don't know that.

Executive session records contain more than only meeting minutes. In my HOA and I'm sure in most, directors receive "board packets" or "directors reports" or similar prior to meetings including executive session. These are filled with bids, reports and confirmation and photos of rules violations, records of dues payments and delinquencies, evidence or requests about potential litigation, the PM's evaluations of staff or vendors, and on & on. Every scrap in these reports or packets are strictly confidential and may be read by directors & the mgmt. team only.
I think this brings us to whether a HOA or COA must retain as official records "every scrap in these reports or packets." California's D-S site says "Board packets" and "directors' reports" are not among these records. Minutes are. See https://www.davis-stirling.com/HOME/R/Records-Retention-Policy . If xyz is attached to ES Minutes, then this is a record releasable to directors.

You have criticized others here for not providing a citation for a quotation. How can you claim to be above the fray when you cite a massive entire web site as your source?

D-S says this about California directors wanting to see ES minutes (https://www.davis-stirling.com/HOME/D/Directors-Right-to-Inspect):
"6. Executive Minutes. Past and present executive session minutes can be reviewed by board members unless a director has a conflict of interest involving a topic discussed at a particular executive session meeting at which he/she was not present. This restriction also applies to recordings (if any) of executive session meetings. (Hamilton v. Town of Los Gatos.)"

Mostly I see your and Bill's claims being potentially abused by boards that want to obstruct legitimate requests to review records.

KerryL1 (California)
Posts: 14,550
Posted:
Roger, are you saying that the notes about the violators are released only to the violators? If so, I don't see how their privacy could have violated. Why are these alleged violators "still upset?"

And since this only is "hearsay," there easily may be missing info. Speculation about "why" the board released this info -- to later get votes barely makes sense, but does make it sound like they released th notes to more owners than only the alleged violators?

(Sorry I misspelled your name previously)
KerryL1 (California)
Posts: 14,550
Posted:
Roger, are you saying that the notes about the violators are released only to the violators? If so, I don't see how their privacy could have violated. Why are these alleged violators "still upset?"

And since this only is "hearsay," there easily may be missing info. Speculation about "why" the board released this info -- to later get votes barely makes sense, but does make it sound like they released th notes to more owners than only the alleged violators?

(Sorry I misspelled your name previously)
KerryL1 (California)
Posts: 14,550
Posted:
I apologize for not citing the complete D-S source for you, ElleN. I thought my brief citation, which include the title of my citation was sufficient.

Bill's approach is interesting, but my HOA has always kept ES board packet forever. It's no policy. So, every board packet is available for all directors to review online in an area for board member only. As my example of the painting contract shows, these records can be really useful.

I guess I don't understand what your thoughts mean, here ElleN: "Mostly I see your and Bill's claims being potentially abused by boards that want to obstruct legitimate requests to review records." Why would boards want to keep other directors from reviewing ES materials? Bill has an interesting approach, but it is not mine.
ElleN (Idaho)
Posts: 4,420
Posted:
Quote:
Posted By KerryL1 on 02/17/2023 9:59 AM
Why would boards want to keep other directors from reviewing ES materials? Bill has an interesting approach, but it is not mine.
Nor is Bill's approach what I recommend. I think maybe you and I agree that, in general, Boards should not prevent other directors from reviewing ES records. There are exceptions, as has been already discussed.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Rodger

While the best legal advice it is to never publish the h=names of those behind in their dues, I personally do not like this advice. I believe in Public Shaming but most lawyers advice against.

Unless you are being legally pursued, I say forget it and move on.
MaxB4
Posts: 3,513
Posted:
Quote:
Posted By KerryL1 on 02/15/2023 9:13 AM
Based on case law, from Davis-stirling.com., Index, Executive Session: The CA HOA lawyers at this site write that: "For most executive session matters, confidentiality should extend indefinitely. This includes personnel matters, an owner's delinquency payment plan, disciplinary actions, and attorney-client privileged communications."

"Consequences. If an individual director discloses confidential information without prior board approval, that director is acting outside his/her scope of authority and could be personally liable for claims of defamation, invasion of privacy, violations of statute, etc. Any judgments against the director would likely not be covered by the association's insurance."

"Disciplinary Action. Directors who reveal confidential information without board approval can be disciplined."

And "A member ...can be punished under disciplinary procedure if he violates the secrecy of an executive session. Anyone else permitted to be present is honor-bound not to divulge anything that occurred. (Robert's Rules, 11th ed., p. 96.)." Note most states or assn. bylaws do not require Boards to use Robert's Rules (RONR), but boards often still use it as a guide when their bylaws are silent.

The poster is not from CA, please stay on topic!
KerryL1 (California)
Posts: 14,550
Posted:
The CA advice to Boards there was ONLY an example of how this is treated in one state. I added "Texas statutes may be similar, but we don't know that. " It is NOT off topic to show approaches from other states as illustrations of possibilities so long as readers know that they must learn what is correct in THEIR states (& docs, if covered).
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By BillH10 on 02/16/2023 6:50 PM
Wendy

In Texas, and probably most other states, a Board can do no such thing as destroy meeting minutes as Board meeting minutes must be retained for a statutory period, if not indefinitely.

LOL hoas do it all the time. You can't be serious. I got nothing when I joined my bod. No records zero nothing!!

vis ta vie
BillH10 (Texas)
Posts: 1,217
Posted:
Of course they do. So, in your opinion, that makes it right or the MC should facilitate such behavior?

In my experience, the Board does not have custodianship of the original records to be able to destroy them. We do not allow our clients custodianship of the original association records and make it clear in contract negotiations custody of the original records remains with us.
WendyM5 (North Carolina)
Posts: 1,522
Posted:
Quote:
Posted By BillH10 on 02/17/2023 8:02 PM
Of course they do. So, in your opinion, that makes it right or the MC should facilitate such behavior?

In my experience, the Board does not have custodianship of the original records to be able to destroy them. We do not allow our clients custodianship of the original association records and make it clear in contract negotiations custody of the original records remains with us.

Then they should of switched mgt companies so the records got lost. Should of, Could of , would of. But the BOD didn't so new board can release them if they want.

The point is dont' expect anything one does as a board member to stay secret after you leave the BOD. you are taking my language too literally.

If I said if you murder someone you should burn the evidence, doesnt' mean you should actually murder someone and burn the evidence. come on.

vis ta vie

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