Notice for Executive session ?

Hey Grace,

E.S are Board meetings that are closed to the membership. They should fall under guidelines for being called, such as discussions about legal issues, emergency items or personal matters. Weekly E.S meetings seems awefully excessive to me so the question is--what the heck is your Board doing at weekly E.S. meetings? A new Board member suggests them because of concers being voiced? By whom ? To call an E.S just to avoid the members being entitled to hear what your Board is deciding would be considered illegal in your States opinion.

Grace,

Copied below is the VA Property Owners Assn statute pertaining to board meetings. As you can see all meetings are to be open to the members of the assn and all meetings must be noticed. Holding an ES to discuss "concerns that have been being voiced" is OK, but only if those concerns fall w/i the stated exceptions for an ES. Anything else must be discussed in an open session. Meeting once a week for an ES tells me they are not discussing only the matters outlined in the statute. My assn has 1702 members and the board has one meeting per month with one ES session held at the end to discuss all the confidential matters, usually just delinquencies and violations and whether to take legal action to collect delinquencies. I can't imagine your board having to meet once a week to discuss confidential matters. The purpose and intent of having an open meeting law is to ensure transparency of board actions and allow the members to exercise their right to attend all meetings of the assn, including all board meetings.

An HOA BOD must not only adhere to the gov docs but also to any state laws that apply to HOAs, including the state nonprofit corp act. IMO, your board needs to start reading the state laws, starting with this one!

§ 55-510.1. Meetings of the board of directors.

A. All meetings of the board of directors, including any subcommittee or other committee thereof, shall be open to all members of record. The board of directors shall not use work sessions or other informal gatherings of the board of directors to circumvent the open meeting requirements of this section. Minutes of the meetings of the board of directors shall be recorded and shall be available as provided in subsection B of § 55-510.

B. Notice of the time, date and place of each meeting of the board of directors or of any subcommittee or other committee thereof shall be published where it is reasonably calculated to be available to a majority of the lot owners.

A lot owner may make a request to be notified on a continual basis of any such meetings which request shall be made at least once a year in writing and include the lot owners' name, address, zip code, and any e-mail address as appropriate. Notice of the time, date, and place shall be sent to any lot owner requesting notice (i) by first-class mail or e-mail in the case of meetings of the board of directors or (ii) by e-mail in the case of meetings of any subcommittee or other committee of the board of directors.

Notice, reasonable under the circumstances, of special or emergency meetings shall be given contemporaneously with the notice provided members of the association's board of directors or any subcommittee or other committee thereof conducting the meeting.

Unless otherwise exempt as relating to an executive session pursuant to subsection C, at least one copy of all agenda packets and materials furnished to members of an association's board of directors or subcommittee or other committee thereof for a meeting shall be made available for inspection by the membership of the association at the same time such documents are furnished to the members of the board of directors or any subcommittee or committee thereof.

Any member may record any portion of a meeting required to be open. The board of directors or subcommittee or other committee thereof conducting the meeting may adopt rules (i) governing the placement and use of equipment necessary for recording a meeting to prevent interference with the proceedings and (ii) requiring the member recording the meeting to provide notice that the meeting is being recorded.

If a meeting is conducted by telephone conference or video conference or similar electronic means, at least two members of the board of directors shall be physically present at the meeting place included in the notice. The audio equipment shall be sufficient for any member in attendance to hear what is said by any member of the board of directors participating in the meeting who is not physically present.

Voting by secret or written ballot in an open meeting shall be a violation of this chapter except for the election of officers.

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

D. Subject to reasonable rules adopted by the board of directors, the board of directors shall provide a designated period of time during a meeting to allow members an opportunity to comment on any matter relating to the association. During a meeting at which the agenda is limited to specific topics or at a special meeting, the board of directors may limit the comments of members to the topics listed on the meeting agenda.

(1999, c. 1029; 2000, c. 905; 2001, c. 715; 2003, c. 404; 2004, c. 333; 2005, c. 353.)

Grace - it is Executive Session or that the Executive Committee is meeting? (President, Secretary and Treasurer) SOME bylaws allow for an Executive Committee to meet to handle the day to day business of the corporation, especailly if you don't have a PM. Is this what your new board member is talking about/

Hah!,
And woe to those in SC who try and define the requirements of ES.

SC has no real laws or statutes and it is what ever is in your documents and if nothing is there the Boards can do whatever they want about noticing or holding the ES session or when it is held and how it is reported. This according to a legal opinion by a SC Lawyer.

I wish someone would prove me wrong, wrong wrong.

Grace,

Many people do feel it's the job of the PM to keep the BOD abreast of all state laws and let them know when they are in violation. However, I'm not sure this is the PM's job unless specifically stated in his/her contract. Surely the BOD knows there are state laws which they can read on their own. If they are unsure of their interpretation they should consult with an HOA attorney.

If actions are being taken they have not been discussed openly in a board meeting, then it's apparent the BOD is meeting behind closed doors or conducting business by email, both of which would be a violation of the open meeting law. Someone needs to inform the board that they are violating the law, whether it be the PM or a member of the assn.

Whereas it might be a good thing that the BOD is breaking away from the PMs "rule"; if they continue to operate in the same manner, what good has been accomplished? Perhaps the PM wasn't to blame for everything???

I have a question for current Board members especially those in California.

Our Association posted a notice for a "Special Executive Sessions" three days before the meeting. Two of the topics that were discussed were from the annual meeting and election held just 10 days earlier. The topics were amending governing docs and discussion on another election, which their legal counsel cancelled at the meeting. I have attached the Civil Code for our state. I have argueds with the PM and one member of the board that they were out of line discussing those two topics in private.

Executive Sessions

Purpose. Executive sessions of the board are private sessions which homeowners are not allowed to attend. Executive sessions are provided for by statute so that boards can address issues which involve privileged information or matters of a private nature. Civil Code §1363.05(b). These include:

1. Legal Issues. Both current and potential litigation matters may be discussed in executive session. This preserves attorney-client privilege, litigation strategy and settlement strategies. The association's attorney does not need to be present either in person or by phone for the board to meet in executive session to discuss legal issues.

2. Formation of Contracts. So as to avoid unfair bidding practices, the board may meet in executive session to review bids and vote on contract proposals (termination of contracts is also a consideration).for all disciplinary hearings. The accused member is entitled to attend the executive session.

4. Personnel Issues. Personnel matters include, but are not limited to, hiring, firing, disciplinary matters and performance reviews.

5. Payment of Assessments. Board may meet with members in executive session to discuss requests by such members for payment plans for delinquent assessments.

Who May Attend Executive Session? Directors, managers, recording secretaries, association attorneys, members subject to disciplinary action as well as witnesses called by either side (but only for that
3. Disciplinary Hearings. Boards should meet in executive session portion of meeting involving them), and others invited by the board (such as vendors bidding on a project) may attend executive sessions.

Robert

This is the case where the Board, PM and Legal Counsel cancelled an Election because quorum wasn't met, even though our By-Laws provided the members who were present at the annual meeting to vote to adjournm to a new meeting. They knew they were wrong, hoping no one would call them on it. I did, as I was the one candidate running against them. It was really a way for them to say "Stay away from our little party". I have researched everything and professionally presented it to both the Board and PM and the board, in this "Special Executive Session" voted to censure me and have any communication to them turned over to Legal counsel. There are many things I would say are "questionable" to say the least. Looks like I will have to hire legal counsel for the Association to fight the Association. How sad is that?

Richard,
You are right, it is sad, but that is probably all it is. I say probably because I don't know any better.

CA has some strange or different ways of doing business, I am sure you know. I don't profess to know much about their laws, but, there are things that are significant I find suspect. I am not sure why you, an owner who voted in your Board has much to do with the PM, when it comes to making policy. The Board hired him, let them deal with that. You apparently have gone through the steps and are not satisfied. Maybe you are ready to get a lawyer and maybe you should get a lawyer, but, as we have posted on this site many times, don't do it alone, and don't do it for yourself. You need support in your community, you need other people to feel wronged and willing to fight the battle. Our documents say an aggrieved owner can bring suit against the Board, good luck on that. Our documents also say that each owner has the responsibility to oversee and contribute to the management of their association. Now, weight those two and see where the power is. It rests with the owners.
But don't recruit a bunch of people and head for the courts. Organize this group, make your presence known, offer your help, do not fight, do not take sides. Your concern is the association and if your mandate is like those in SC your mission is the protection of the whole, not showing the Board who is boss. If you can start this process and not break CA laws, and, of course, agree with what I am saying, go do it. The views of ten people are normally going to carry more weight that the views of one person. Of course you have the election of running for the Board and effecting change from the inside, no choice of how to make change is going to be quick, and a snail might move faster.........worth it though.

TimB,
Excellent post. Mary can quote you chapter and verse about the reasons for ES. Of course not all these apparent infractions hold a devil. Some (most maybe) are just volunteers trying to run their association to the best of their ability. Owners have the right to question and also take action outside the board, but as I have said many times, don't do it alone. We had one gentleman that posted here from Florida and said he sued and won big or something. Rest of the time it is a process and as this process moves forward you find things like ES or procedures become background and the effort seeks more of a restructuring than a single issue. Suing a HOA is suing yourself. I didn't make that up either.

Our board, in Virginia, has taken to having the association attorney participate via conference call. They then cite this as the basis for holding an executive session "to consult with legal counsel". They hold their executive session and reconvene in open session only to adjourn. In some cases this is legit and in others we believe it is just a sham to avoid open discussion of contentious issues but we can't prove it because we really don't know what they are doing behind closed doors. One strong hint is that there has never been a dissenting vote on any motion voted on by the board in open session. There is not much we can do about it, that I can think of.

David,

I agree, there isn't much you can do about it. You should not be taking any type action based upon assumptions. Only if you know (have legit proof!) they are abusing their executive session authority can you do anything about it.

My assn's BOD also tends to vote the same on all issues. As a member of my assn's advisory committee I am present at all closed meetings, I know my board does not abuse their authority. So, what I'm trying to convey to you is that how the board votes in open session may have nothing to do with what they discuss in a closed session.

Don't make assumptions and try to second guess the BOD's every move -- it isn't healthy. If you think they're doing something wrong get the necessary proof b/4 making any accusations. If you have no proof then just let it alone!

Richard,

Your petition sounds reasonable to me. Good luck! Also good luck with the recall if they refuse to honor the petition.

Tim,
Good post.

ALL READ

Read here to find out this stuff that needs doing takes time, and effort, and patience, and direction and responsibility and authority and obligation and no malice.

Mary,

That is exactly what I am talking about and the documentation is required in VA. Mind you, the documentation can be as simple as:

At HH:MM The Board retired to executive session for the purpose of discussing xyz.
At HH:MM the Board returned from executive session and decided abc on xyz.

Additionally, as in AZ, separate minutes of the executive session are also required but are not available to members.

As for the legal issues:

I also agree that the expectation that legal fees would be a line item in the budget. Even if the BOD doesn't know off the top of their head the exact fees, it can be easily identified as (having paid legal bills for my Association) the lawyers itemize the bill they send and also maintain a full accounting of the time they charge for. Heck, my last legal bill was $66 for a 15 min. phone call.

So in an open meeting, the Board could easily sidestep the issue but the point would be made. Our members ask the Board why legal fees are spent. It's a legitimate question and I for one, can not see having an attorney at every BOD meeting unless there is something specific being discussed requiring the attorney to be there.

The real issue is the members perception of the Boards actions. It's not that the Board is doing anything wrong. However, if everything is done in secret, the perception of wrong doing can be created. I have always said, an informed member is a better member who will also make an informed vote.

Tim

Tim,

As to legal fees - there is a line item in the monthly financial statement showing the expense for legal counsel. However, there is no detail beyond that total. I have requested to examine the invoices from the attorney to determine what is being charged for particular activities. This request was repeatedly refused on the grounds of attorney client privilege. Eventually I was provided copies of invoices that were so heavily redacted (blacked out most of the information) so as to be useless. Me thinks they have something to hide! :>)