Viewing Executive Session Minutes by Board member

RobertG12 (Arizona)
Posts: 160

Posted:

In Arizona, there are very well defined reasons for when Executive Session is to be used. Minutes are kept separate to keep the actions private and are not available to homeowners.

If a new board member comes in, wouldn't it be reasonable for the board member to be granted access to previous executive session minutes?

HB (Oregon)
Posts: 143

Posted:

I would say no you do not need access to previous executive session minutes, unless it pertains to something you are currently working on, or something you are being asked to vote on in which case having all the information would be helpful. Otherwise you are just digging up information that has already been dealt with by the Board at that time. IMO

RobertR1 (South Carolina)
Posts: 5,164

Posted:

HB seems on target.
For the reason he stated and suppose a new board member had a bone to pick about past actions, and HB is right, all things equal the business has been done. But just suppose there was a effort made to dig up an old carcass. Maybe that is legit and if so there are better ways to get at it than deceiving someone.

If it is a matter of criminal conduct, I think that is much better left to the lawyers on how to go about getting information. I have no idea and am not suggesting anything I said fits this picture. IMHO

SusanW1 (Michigan)
Posts: 5,202

Posted:

Since speeches, debate and conversations are NOT supposed to be in ANY minutes of ANY meeting, what information would this person gleen from the minutes?

Since all attendees in ES are sworn to secrecy about the goings on in ES meetings, what could be shared with this person?

Any ACTION that comes out of an ES has to be made (motioned and voted) in regular session, there is no information that this person could get from the minutes of the ES meeting that preceeded the regular meeting.

RobertG12 (Arizona)
Posts: 160

Posted:

How about...

What if a contract is supposed to be in place, no paperwork can be found and there is talk that the vote was taken in executive session? How are is a board member supposed to make decisions now without knowing all the history?

RobertR1 (South Carolina)
Posts: 5,164

Posted:

RobertG,
A rumor of talk won't cut it. If a vote was made it should have been reported in open session. Does this hold true across the Board? It should but I bet it don't.

If your association is paying anyone without a contract to do a certain work order or fulfill a contract, you should try to right the wrong. If you are right, no records can be found, you have to wipe the slate clear and start again.

It is no secret that the order of conducting Executive sessions is never a one size fits all. It should be but it's not and some BOD look at the ES as a way to hide information. Certainly not all, but it is a procedure that is abused throughout the Community Associations. It has to be addressed and if the will is in the owners a set policy in the guidelines of something like Roberts Rules should be adopted and spelled out in a Board Policy.

If you are looking for misconduct, those that practice this do not restrict their activities solely to ES.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Susan,
Wouldn't the new member be swore to the same secrecy oath that other Board members take. Would it make a difference if the information was old or new, if it was information that could impact on the new members vote, if indeed a vote was proper at this time. Knowing that a few boards use the ES as some kind of wide card, it is conceivable that a discussion could be done at one ES and a vote at another. Of course this would not be an issue if the ES was conducted properly to begin with if a vote or decision was made and that requires notification in the minutes.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Robert G is implying that a secret vote was taken in ES to approve a contract.

There must also be a "public" record of that spending approval of the board, recorded in the regular minutes of the Board meeting.

He should simply ask for the contract from the Treasurer. As a member, he has a right to see it or the minutes of the board meeting where the expenditure was approved.

MaryA1 (Arizona)
Posts: 7,043

Posted:

RobertG,

What Susan and Robert don't seem to understand is that AZ has an open meeting law which must be adhered to. That law does NOT require actions to be taken in an open session nor does it require that actions taken in ES be reported in an open session. The BOD should take minutes of the ES which will serve as a record of all actions taken in ES. It's best not to make a generalization as though it is law. RRO may state no actions can be taken in ES; but the BOD is required to adhere to state law and/or their gov docs, not RRO!!

Are you saying the BOD approved a contract; the work is being performed; but now the BOD and/or the PM doesn't have a copy of the contract? If this is the case, I'm sure the vendor could supply a copy of the contract. If a vote was taken in ES it should be stated in the minutes of the ES. The new board member should be able to ask questions of the board members and also have the authority to review the minutes of past ES meetings.

RobertG12 (Arizona)
Posts: 160

Posted:

Mary has identified the points well.

Also, each of you assume that the past boards have followed rules or laws correctly. However, since no one seems to know what happened (the old board is gone) the new board is trying to figure out the puzzle. Actually the vendor is a lawyer. The board is trying to get the lawyer to show the contract but it would be better to see what, if anything, the board actually agreed to. There is a possibility the president may have signed a contract or made some verbal promise without board approval. One of the possibilities for the new board is to cancel the contract (for other reasons) and has concerns over what termination clauses were included.

Hopefully the lawyer will produce the contract and all will be good. However, if there are questions as to the misuse of ES, then someone needs to check the minutes and the current board members weren't there, thus the question of a new board member reviewing old ES minutes.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

I'm thinking perhaps the contract with the lawyer was to put him on a retainer. Are there monthly payments being made to the lawyer? The new board Pres should contact the lawyer and explain that the old board did not leave the new board with all the assn records and one thing missing is his contract. He should be willing to provide a copy. Unless your assn has a lot of legal work each month, I can't imagine why the board would want to have an attorney on retainer. I certainly would not cancel the contract until I had the opportunity to review it!

If the old board misused ES, that should be considered over and done with, unless, of course some important law was blatantly violated. The new board should thoroughly review the requirement for ES and proceed from there. It might be a good idea for each board member to take the ES minutes for several months of the previous year, review them, recap the actions taken and make a report at the next ES session. This would bring the whole board up-to-date on the actions taken in ES (i.e., Pres would review Jan thru Mar '08; V.P. would review Apr thru Jun '08, etc.)

RobertG12 (Arizona)
Posts: 160

Posted:

The lawyer is doing work that is a contingency based for problems with the developer. Since there has never been a payment yet, the accounting does not show anything.

One board member is willing do something like a recap, thus the question. I would hope there is a binder with all the ES minutes sitting somewhere, but since several management companies have been involved over the years, I doubt it.

Mary, I somewhat disagree with the implication that contracts would be ok to approve in ES. Unless it is relative to one of the 4 topics there would be no reason to vote on a contract in ES. I just don't see any of those 4 topics requiring a contract of any kind.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

It would come under legal advice from an attorney. Contracts are generally not discussed in an open session, especially if negotiations have not been completed.

RobertG12 (Arizona)
Posts: 160

Posted:

Quote:

Posted By MaryA1 on 06/24/2009 8:38 AM
Robert,

It would come under legal advice from an attorney. Contracts are generally not discussed in an open session, especially if negotiations have not been completed.

I would disagree. The advice the lawyer gives is ES material, not the contract. If you follow that logic, then all contracts would be in ES which then defeats the intent of the open meeting laws.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

I think most boards do negotiate and vote on contracts in ES. I think it's a fine line as to whether or not its a violation of the OML. When the board is discussing and voting on a contract they are also reviewing the advice of the attorney, whether he/she is present or not and that's the justification for a closed session. I do feel the OML should more clear on this.

The intent of the OML is to allow members to attend all meetings of the assn and speak b/4 the board votes on a particular issue, unless confidential information is being discussed. The OML is not intended to allow members to be a party to confidential information.

RobertG12 (Arizona)
Posts: 160

Posted:

Quote:

Posted By MaryA1 on 06/24/2009 10:22 AM
Robert,

I think most boards do negotiate and vote on contracts in ES. I think it's a fine line as to whether or not its a violation of the OML. When the board is discussing and voting on a contract they are also reviewing the advice of the attorney, whether he/she is present or not and that's the justification for a closed session. I do feel the OML should more clear on this.

The intent of the OML is to allow members to attend all meetings of the assn and speak b/4 the board votes on a particular issue, unless confidential information is being discussed. The OML is not intended to allow members to be a party to confidential information.

I won't beat this anymore, but I don't see how you can have the owners allowed to speak for or against any vote (unless confidential) if all contracts are done in ES. For example, would you suggest that a contract for someone to paint a fence should be done in ES?

IMHO I feel the less that is done in ES the more transparent and less suspect the board is viewed by the owners.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

I agree with you. I'm only surmising what the mindset of the board is because I have reason to believe most BODs do discuss contracts in a closed session.

JohnO6 (Georgia)
Posts: 424

Posted:

Mary - Even though you have conceded you agree with Robert, I still think you believe most contracts are discussed in ES. I'm not sure that's true. In our HOA we develop RFPs for most significatnt contacts, and the consequent proposals are discussed in the normal Board meeting.

Objective information requested.
Objective information received.
A mixed objective/subjecive analysis of the proposals received.
Decision made.

No need for ES on this type of thing.

MaryA1 (Arizona)
Posts: 7,043

Posted:

OK, John. I'll change "most" to "many".

RobertR1 (South Carolina)
Posts: 5,164

Posted:

I think we all could agree that the ES requirements or rules or laws or whatever seem to be abused frequently if we use postings on this site as a measure. That premise has it's faults granted. However there appear to be pretty narrowly defined parameters that allow for the Board to conduct an ES. I would guess part of the problem is this reality (maybe) that if a quorum of the Board is present and discusses board business it is an official meeting. Sometimes things come up before the board that require action and since there are a mess of absentee BOD's there seems to be some pressure to get the problem taking care of immediately, so the BOD will call a ES at any time at all, declare that no decision or votes were taken and solve the problem,m that way. I think it is absolutely wrong but what is a members supposed to do? Sue the Board? Question the Board? Expose the Board? Report the Board to some authority? The BOD knows all this as well as the members, and they can call the Bluff of nearly all members and continue the practice. Most that could realistically happen is to have their finger slapped by a judger. I don't know the answer and I am not saying all Boards or referencing any # , just an observation and personal experience. I will add that any Boards I have been associated with are not models of excellent followers of rules and covenants, but neither have they been models of destruction.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

You're on the right track! Far too many board members don't know or understand the laws. Some that do don't care if they break them because they know they can get away with it or they know that most members don't know the laws and really don't care. Some of the laws that are broken aren't worth getting upset over. So the BOD discusses contracts in a closed session. What harm does that do to the assn? How many members are really upset because they didn't get to hear the discussion in an open session -- perhaps 5 out of a membership of 1,000? I'm not saying it's OK to break the law because the majority of the members don't care. All I'm saying is that sometimes a law is broken but that doesn't mean the sky is falling -- don't sweat the small stuff.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Aha Mary,
You open a new door for discussion.

I am still in the learning mode after all these years and am still not satified I can tell the difference, but, how do you know what is small stuff and when to sweat any of it. I can't find the handle, what I ignore sometimes can be a huge problem if addressed at another time. You can, after due consideration, raise an issue with a Board member or before the Board and they all look as if they are talking to some alien.

I am not spouting poor me, no one likes me and no one listens, I got a hard shell. But to confess I have reached a place in time that I just don't want to fight the fight anymore. I have lost the spark and don't know where to find it. Never happened before and for sure I contributed to finding myself where I am.

I really enjoy talking about and listening to folks on this site and that seems to be separate from my relationship with my association.

So, Mary, how about this ability to be able to recognize the small stuff from the big stuff?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

So, what is "small stuff" and what is "big stuff"? I believe that determination is left to each individual. However, it appears that most HOA members regard ALL the business of the HOA as "small stuff" as evidenced by their lack of desire to get involved. I know of one HOA where the members couldn't even be bothered to vote to eliminate the requirement for an annual assessment increase? You could say the amount of the assessment is "small stuff" to them.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Mary, you rascal,
I knew when I posted this you would come out with something like this. And you are right, if you spend much time trying to rationalize associations you will go bonkers. All you got to do is walk out our door and you are faced with contridictions. Maybe it helps to be somewhat slow and by the time we get around to thinking about that, this will jumps up and we have to think about this and never get back to that.

AnnD1 (California)
Posts: 7

Posted:

Hi RobertG12
Looking at the Davis Sterling Act, refer to the corp code 8334 gives directors the absolute right to inspect ALL RECORDS.
The directors can have the managment company mail them or the director can request a day to go over all records at the managment company office. I personal like to go to the office that way I can have any question answered that might come up.

Ann

AnnD1 (California)
Posts: 7

Posted:

Hi RobertG12
Looking at the Davis Sterling Act, refer to the corp code 8334 gives directors the absolute right to inspect ALL RECORDS.
The directors can have the managment company mail them or the director can request a day to go over all records at the managment company office. I personal like to go to the office that way I can have any question answered that might come up.

Ann

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By AnnD1 on 07/14/2009 9:50 PM
Hi RobertG12
Looking at the Davis Sterling Act, refer to the corp code 8334 gives directors the absolute right to inspect ALL RECORDS.
The directors can have the managment company mail them or the director can request a day to go over all records at the managment company office. I personal like to go to the office that way I can have any question answered that might come up.

Ann

Ann, as much as that might be the case, what does that have to do with Arizona law. California and Arizona are much different (Arizona even went to war - maybe a overexaggeration - with California in past history).

AnnD1 (California)
Posts: 7

Posted:

RobertG12,

Then show me where it is written in the "Arizona Law" that a board member does or does not have a right to inspect "ALL Records". Give me a qoute and were I can look in the "Arizona law" that I can read it for myself.

Ann

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By AnnD1 on 07/15/2009 7:51 AM
RobertG12,

Then show me where it is written in the "Arizona Law" that a board member does or does not have a right to inspect "ALL Records". Give me a qoute and were I can look in the "Arizona law" that I can read it for myself.

Ann

My point is that California statues like Davis Sterling Act have no relevance in Arizona.

Arizona law states what members can or can't see but are silent on what board members can. Executive session is specifically excluded from members which might imply board members since they are also a member of the association. I don't see how anyone would argue that a current board member can't see current executive session minutes. However, if you read the opening post, the question is can current board member see executive minutes from a time when they weren't board members.

here is the Arizona law (notice Part B section 3)-

33-1805. Association financial and other records

A. Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.

B. Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following:

1. Privileged communication between an attorney for the association and the association.

2. Pending litigation.

3. Meeting minutes or other records of a session of a board meeting that is not required to be open to all members pursuant to section 33-1804.

4. Personal, health or financial records of an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

5. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

C. The association shall not be required to disclose financial and other records of the association if disclosure would violate any state or federal law.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Ann,

There is no specific law pertaining to board members, but there is law stating all members have a right to inspect all records of the assn; however, the minutes of an ES meeting would be exempted. Ref ARS 33-1805. But the exemption should not pertain to a board member. Board members should have access to all the records of the assn; how else would they be expected to adequately perform their job?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

Guess were were answering Ann at the same time.

But, to answer your original question. . . IMO it doesn't make any difference whether the ES minutes were from a time when you were a board member or not, the point is that you are a board member now and you have a right to see any and all records of the assn. To be denied would certainly raise questions in my mind!

RogerB (Colorado)
Posts: 5,067

Posted:

Past executive session minutes should remain private. There was a reason for the privacy and it should not be violated. If the Board needs to review the matter again then they can have another executive session.

We recommend conducting ONLY discussions on matters that require the privacy of an executive session. Discussions need not be recorded in minutes. Following the executive session any necessary motions and votes can then be conducted in an open Board meeting. Using this procedure provides the information you need in the minutes of the Board meeting while minutes, if any, of an executive session remain private.

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By RogerB on 07/15/2009 8:34 AM
Past executive session minutes should remain private. There was a reason for the privacy and it should not be violated. If the Board needs to review the matter again then they can have another executive session.

We recommend conducting ONLY discussions on matters that require the privacy of an executive session. Discussions need not be recorded in minutes. Following the executive session any necessary motions and votes can then be conducted in an open Board meeting. Using this procedure provides the information you need in the minutes of the Board meeting while minutes, if any, of an executive session remain private.

Roger, as and example, if a litigation issue was started a year ago which required executive session and now it is finally happening, why would the current board not be privy to all the motions that were made to get into the situation? How would anyone know what is required now?

RogerB (Colorado)
Posts: 5,067

Posted:

Quote:

Posted By RobertG on 07/15/2009 8:40 AM

Posted By RogerB on 07/15/2009 8:34 AM
Past executive session minutes should remain private. There was a reason for the privacy and it should not be violated. If the Board needs to review the matter again then they can have another executive session.

We recommend conducting ONLY discussions on matters that require the privacy of an executive session. Discussions need not be recorded in minutes. Following the executive session any necessary motions and votes can then be conducted in an open Board meeting. Using this procedure provides the information you need in the minutes of the Board meeting while minutes, if any, of an executive session remain private.

Roger, as and example, if a litigation issue was started a year ago which required executive session and now it is finally happening, why would the current board not be privy to all the motions that were made to get into the situation? How would anyone know what is required now?

Where do you see a problem? Using the procedure we suggest every action taken, motions and votes, would be in the minutes of the Board meeting. However, if the motions were passed in executive session, and it became necessary for the current Board members to confirm, those minutes would need to be made available. But only to the Board, their attorney, and any required discovery. With litigation the minutes are no longer private property of the HOA. This is we suggest no discussion be recorded in the minutes.

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By RogerB on 07/15/2009 9:52 AM

Posted By RobertG on 07/15/2009 8:40 AM

Posted By RogerB on 07/15/2009 8:34 AM
Past executive session minutes should remain private. There was a reason for the privacy and it should not be violated. If the Board needs to review the matter again then they can have another executive session.

We recommend conducting ONLY discussions on matters that require the privacy of an executive session. Discussions need not be recorded in minutes. Following the executive session any necessary motions and votes can then be conducted in an open Board meeting. Using this procedure provides the information you need in the minutes of the Board meeting while minutes, if any, of an executive session remain private.

Roger, as and example, if a litigation issue was started a year ago which required executive session and now it is finally happening, why would the current board not be privy to all the motions that were made to get into the situation? How would anyone know what is required now?

Where do you see a problem? Using the procedure we suggest every action taken, motions and votes, would be in the minutes of the Board meeting. However, if the motions were passed in executive session, and it became necessary for the current Board members to confirm, those minutes would need to be made available. But only to the Board, their attorney, and any required discovery. With litigation the minutes are no longer private property of the HOA. This is we suggest no discussion be recorded in the minutes.

I am confused. What it sounds like you are saying is that every motion made in an executive session is remade in regular board meeting. Am I wrong?

Why would litigation make the actions of the execution become public?

If the board sues the developer and a motion is made on how to proceed, that would be in executive session. If it take several years to get the action done and the new board wants to change its mind, how would it know what the original action was without going back and looking at the minutes of the executive session?

TracieS (Colorado)
Posts: 460

Posted:

I have a question, after following this conversation.

Our BOD has never gone into executive session, so I'm completely ignorant of this - just FYI.

IF, and that's a big if...the discussion of what happens in Executive Session is so super-secret-squirrel...AND, IF motions/seconds/decisions are made in the regular session following ES...WHY are there minutes of an Executive Session anyway? ALL corporate documents are completely discoverable if there's litigation, so those documents COULD eventually come to light, right (including email)?

So...why are there minutes if no one can go back to refer to them? Why are there ES minutes if everything decided in ES winds up in the regular minutes? If a new BOD member can't access the ES minutes, could an EX-BOD access those ES minutes, since the EX-BOD was included on those discussions?

Is Executive Session more of a "coffee clatch" (gossip time) or a time when the BOD gets down to serious business (super secret squirrel)?

Also, I work for a non-profit as my real job, and our BOD minutes just mention that the BOD went into ES, the time, and when they came out of ES. There are NO (official) minutes of the ES. Notes are taken during ES to make sure all business discussed during ES is "validated" during the regular meeting, and then those notes are destroyed.

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By TracieS on 07/15/2009 1:30 PM
I have a question, after following this conversation.

Our BOD has never gone into executive session, so I'm completely ignorant of this - just FYI.

IF, and that's a big if...the discussion of what happens in Executive Session is so super-secret-squirrel...AND, IF motions/seconds/decisions are made in the regular session following ES...WHY are there minutes of an Executive Session anyway? ALL corporate documents are completely discoverable if there's litigation, so those documents COULD eventually come to light, right (including email)?

So...why are there minutes if no one can go back to refer to them? Why are there ES minutes if everything decided in ES winds up in the regular minutes? If a new BOD member can't access the ES minutes, could an EX-BOD access those ES minutes, since the EX-BOD was included on those discussions?

Is Executive Session more of a "coffee clatch" (gossip time) or a time when the BOD gets down to serious business (super secret squirrel)?

Also, I work for a non-profit as my real job, and our BOD minutes just mention that the BOD went into ES, the time, and when they came out of ES. There are NO (official) minutes of the ES. Notes are taken during ES to make sure all business discussed during ES is "validated" during the regular meeting, and then those notes are destroyed.

Tracie, as far as I know, the motions that are made in Executive Session stay in executive session. In our state there are 4 reasons that the board CAN discuss these privately without breaking the open meeting law. Those topics do not have to be discussed in ES, but can and usually are. Litigation issues happens to be one and I used as an example.

TracieS (Colorado)
Posts: 460

Posted:

To add another layer to my confusion... I wonder if it matters where the Non-Profit corporation is registered? I work in Colorado, but my workplace is registered in Illinois (more favorable corporate laws back in the 1950s). Although this probably is REALLY rare for a homeowners/property/townhome association.

I'll just keep hoping our BOD never has to go into ES! That seems to be the way to go! Plus, I DO agree that corporations (homeowner associations included) need a MUCH GREATER level of transparency. So, as a BOD and President, I would probably caution our group against ES except in the most extreme of situations.

With my tiny association, I can't imagine us going into ES for pretty much any reason. We're certainly not litigious, and any contract stuff can be viewed by owners. If the BOD discusses my contract as Property Manager, I excuse myself and leave the room until they're done. No need to go into ES just so one person can't hear the discussion. Why would I inconvenience everyone like that? I wouldn't.

I really love casual Colorado. Arizona, Florida, and California seem like HORRIFIC states to try to run a good association. I used to wish our association was more regulated, but I'm finding that I really like the casual.

AnnD1 (California)
Posts: 7

Posted:

Board members make decisions in ES pretaining to members who are in violations, behind on their assessment dues, and when and who is sent to collections, liens, levys, yes contracts, although Board members do request input from the members when it comes to contractors, working within the complex. The board members then go into ES and decide on contracts. Discuss assessment dues increase or special assessments, financials, amending the CC&Rs,(which is sent to the members for a vote, then it comes back to the board members and the final decision is made by the board in ES. The Board makes decisions on items that will effect the future of the Community that is why it is important for a Board Member, just elected or someone that has held several terms to have access to all ES. To see what decisions were made by previous board members. The minutes are kept just like in an open session. Who said what and the resolution that was reached.

RogerB (Colorado)
Posts: 5,067

Posted:

RobertG stated: "I am confused. What it sounds like you are saying is that every motion made in an executive session is remade in regular board meeting. Am I wrong?
Why would litigation make the actions of the execution become public? "

Robert, your conclusion is not correct. I said only discussion would occur during the executive session, there would be no motions and votes taken. Any motions and votes would occur once the regular Board meeting convined and those would be recorded in the minutes of the regular Board meeting. Don't know what you mean by execution, but all documents provided during litigation become public documents.

Tracie stated "I work for a non-profit as my real job, and our BOD minutes just mention that the BOD went into ES, the time, and when they came out of ES. There are NO (official) minutes of the ES. Notes are taken during ES to make sure all business discussed during ES is "validated" during the regular meeting, and then those notes are destroyed."

With only discussion occuring the "official" ES minutes could record the times the ES started and ended. Any desired motions and votes are then taken during a regular Board meeting with no discussion. Some posters have listed the item for which an ES is appropriate, such as legal matters, personnel matters, and a couple of others. Meanwhile, some posters have listed items which I don't believe are appropriate for an ES but should be handled in an open Board meeting with discussion heard by all present.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Roger,

What you don't seem to understand is that the AZ open meeting law does not prohibit motions or votes being taken in a closed session. Discussion, motions and voting can and does occur in a closed session and should be recorded in the closed session minutes. Only making notes during the closed session then destroying them is certainly not recommended. Regarding your remark: "Some posters have listed the item for which an ES is appropriate, such as legal matters, personnel matters, and a couple of others. Meanwhile, some posters have listed items which I don't believe are appropriate for an ES but should be handled in an open Board meeting with discussion heard by all present." The AZ open meeting law is very clear in stating what topics can be discussed in a closed session.

I don't totally agree with your opinion that past closed session minutes should remain private. Of course they should always be withheld from a non-board member of the assn, but I see no reason why a new board member cannot view past closed session minutes. Being a board member gives one the right to confidential info whether it was discussed and/or acted upon before that person was elected to the board or not. There will be some ongoing issues that a new board member will have to be brought up-to-date on and if some are confidential matters then viewing past closed session minutes would be helpful. And, I think this is the reason for Robert's original question.

RogerB (Colorado)
Posts: 5,067

Posted:

Mary,
To clarify, I do understand what items should be handled in ES; and I know that Boards can elect to make decisions in ES. With regard to RobertG's senario I believe he stated the approval of a contract was in question. Normally this would not required an ES unless the amount of each companies bid was discussed. Mary, do you think it is appropriate to allow a new Board member to individually review past ES minutes? If previous Board decision on a matter requiring an ES need to be reviewed wouldn't it be better to have another ES? If the ES minutes provide only the motions and votes, and do not include details, such as the reasons for the decisions made, what value would that be to a new Board member who is not familar with the case?

Following are some thoughts on RobertG's senario:
As I understand it the matter was turned over to an attorney to handle. So, until such time as the current Board wants to review that decision, it is now controlled by the HOA's attorney. I would think the attorney's first actions would have been to try to determine if there is a legally binding agreement? And if there is a agreement did the HOA's representative have the authority to execute it? (Would it matter for this case if the representative did not have the Board's appoval - possibly not, but it could for suing that representative). If the agreement can not be found I would think the HOA's attorney is or has requested all information related to the contracting party's claimed agreement during discovery. And I presume that all minutes reflecting the approval or non approval would have already been provided by the Board and reviewed by the HOA's attorney. If the new Board wants to reconsider this case they can call an ES and review the current status with their attorney. All ES minutes will remain private, not open to the public, when viewed by the Board and their attorney. However, they become public when entered into the court record.
Disclaimer: I am not an attorney and this should not be construed in any manner as a legal opinion or legal advice.

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By RogerB on 07/16/2009 8:27 AM
Mary,
To clarify, I do understand what items should be handled in ES; and I know that Boards can elect to make decisions in ES. With regard to RobertG's senario I believe he stated the approval of a contract was in question. Normally this would not required an ES unless the amount of each companies bid was discussed. Mary, do you think it is appropriate to allow a new Board member to individually review past ES minutes? If previous Board decision on a matter requiring an ES need to be reviewed wouldn't it be better to have another ES? If the ES minutes provide only the motions and votes, and do not include details, such as the reasons for the decisions made, what value would that be to a new Board member who is not familar with the case?

Following are some thoughts on RobertG's senario:
As I understand it the matter was turned over to an attorney to handle. So, until such time as the current Board wants to review that decision, it is now controlled by the HOA's attorney. I would think the attorney's first actions would have been to try to determine if there is a legally binding agreement? And if there is a agreement did the HOA's representative have the authority to execute it? (Would it matter for this case if the representative did not have the Board's appoval - possibly not, but it could for suing that representative). If the agreement can not be found I would think the HOA's attorney is or has requested all information related to the contracting party's claimed agreement during discovery. And I presume that all minutes reflecting the approval or non approval would have already been provided by the Board and reviewed by the HOA's attorney. If the new Board wants to reconsider this case they can call an ES and review the current status with their attorney. All ES minutes will remain private, not open to the public, when viewed by the Board and their attorney. However, they become public when entered into the court record.
Disclaimer: I am not an attorney and this should not be construed in any manner as a legal opinion or legal advice.
To add a bit, the contract in question is the attorney's contract - Did the board ever really approve the contract for the attorney to do certain litigation and what the options stated in the contract. Since none of the board that supposedly made that decision, there is no way to know if the contract that is claimed to be in effect was ever voted on by the board in ES. If the board didn't really vote for it, then there is a significant risk in taking action for or against the attorney who may claim he has a valid contract. If only the President signed a contract without board approval and the attorney wants certain compensation, the current board needs to know what the options are.

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By RobertG on 07/16/2009 8:34 AM

Posted By RogerB on 07/16/2009 8:27 AM
Mary,
To clarify, I do understand what items should be handled in ES; and I know that Boards can elect to make decisions in ES. With regard to RobertG's senario I believe he stated the approval of a contract was in question. Normally this would not required an ES unless the amount of each companies bid was discussed. Mary, do you think it is appropriate to allow a new Board member to individually review past ES minutes? If previous Board decision on a matter requiring an ES need to be reviewed wouldn't it be better to have another ES? If the ES minutes provide only the motions and votes, and do not include details, such as the reasons for the decisions made, what value would that be to a new Board member who is not familar with the case?

Following are some thoughts on RobertG's senario:
As I understand it the matter was turned over to an attorney to handle. So, until such time as the current Board wants to review that decision, it is now controlled by the HOA's attorney. I would think the attorney's first actions would have been to try to determine if there is a legally binding agreement? And if there is a agreement did the HOA's representative have the authority to execute it? (Would it matter for this case if the representative did not have the Board's appoval - possibly not, but it could for suing that representative). If the agreement can not be found I would think the HOA's attorney is or has requested all information related to the contracting party's claimed agreement during discovery. And I presume that all minutes reflecting the approval or non approval would have already been provided by the Board and reviewed by the HOA's attorney. If the new Board wants to reconsider this case they can call an ES and review the current status with their attorney. All ES minutes will remain private, not open to the public, when viewed by the Board and their attorney. However, they become public when entered into the court record.
Disclaimer: I am not an attorney and this should not be construed in any manner as a legal opinion or legal advice.

To add a bit, the contract in question is the attorney's contract - Did the board ever really approve the contract for the attorney to do certain litigation and what the options stated in the contract. Since none of the board that supposedly made that decision, there is no way to know if the contract that is claimed to be in effect was ever voted on by the board in ES. If the board didn't really vote for it, then there is a significant risk in taking action for or against the attorney who may claim he has a valid contract. If only the President signed a contract without board approval and the attorney wants certain compensation, the current board needs to know what the options are.

[Sorry the post didn't go the correct place the first time.]

RogerB (Colorado)
Posts: 5,067

Posted:

RobertG,
Since it is the HOA's attorney's agreement which is in question the solution is simple. Request they provide the Board with a copy of the agreement. Review the agreement, specifically the TERM. Perhaps the agreement can be easily terminated or renegotiated by the Board if they so decide. If not, then the Board can review all minutes including ES minutes to determine if the HOA's committing party to the agreement was authorized to do so. This could be a problem if the HOA attorney will not agree with the Board's decision.

RobertG (Arizona)
Posts: 505

Posted:

Quote:

Posted By RogerB on 07/16/2009 8:46 AM
RobertG,
Since it is the HOA's attorney's agreement which is in question the solution is simple. Request they provide the Board with a copy of the agreement. Review the agreement, specifically the TERM. Perhaps the agreement can be easily terminated or renegotiated by the Board if they so decide. If not, then the Board can review all minutes including ES minutes to determine if the HOA's committing party to the agreement was authorized to do so. This could be a problem if the HOA attorney will not agree with the Board's decision.

I think you now see why the board needs access to the old ES minutes. Once there is a doubt in the current board's mind as to how the agreement was authorized (or not) then it opens the door for all kinds of questions.