Things you might find interesting about your Executive Session Meetings. Below is an article from the Davis-Stirling.com Newsletter by ADAMS | STIRLING PLC regarding the business of Bylaws and whether it is okay to have them unsigned or not.
Executive Session Minutes
QUESTION: Does Civil Code §4930 also apply to executive session meeting agendas? Can boards add things to the agenda without going through the procedures described?
ANSWER: Civil Code §4930(a) restricts boards from discussing or taking action on any item at a non-emergency meeting unless the item was placed on the agenda included in the notice given to the membership.
Agenda Exception. The statute provides an exception for emergencies. If an item came to the attention of the board after the agenda was distributed, and if a majority of the board present at the meeting determines that an emergency situation exists, it can be added to the agenda at the meeting.
Emergency Defined. An emergency is defined as “circumstances that could not have been reasonably foreseen by the board, that require immediate attention” and making it impracticable to provide notice. (Civ. Code §4930(d)(1).)
Executive Session Agendas. The statute does not make an exception for executive session meetings. Even so, an argument can be made that executive sessions were not contemplated since the statute requires the board to “openly identify the item to the members in attendance at the meeting” before discussing the item. Members cannot attend executive session meetings so it would seem to apply only to open meetings.
Reported in Minutes. In any event, if an item of business is acted on by the board in executive session, it must be reported to the membership via open meeting minutes.
Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership. (Civ. Code §4935(e).)
RECOMMENDATION: Talk to your association’s legal counsel and follow their direction on this issue.
Executive Session Minutes . . . .
QUESTION: Our manager made an announcement that minutes of our executive sessions should not be approved so that no legal entity can request them because they are simply drafts. Is that correct? Also, are executive session minutes allowed to be disclosed to new board members who weren’t present at the meetings?
ANSWER: Good questions. The first one is problematic.
Practicing Law. First, your manager is practicing law without a license–something that could get your board and management company in trouble. Second, and more importantly, the advice is incorrect. Keeping executive session minutes in draft form does not shield them from discovery. If the association is sued and the plaintiff subpoenas all documents related to your executive sessions, You must produce them. Some information can be redacted from minutes but you must produce them, whether in draft or final form, signed or unsigned.
New Directors. With some exceptions, new directors joining the board have a right to review the association’s records, including minutes of prior executive session meetings. If the director has a conflict of interest, prior executive minutes involving the conflict may be off limits. Your legal counsel can help you decide what to release.
RECOMMENDATION: Always draft your minutes with an eye to how they would sound to a jury if read aloud in open court.
For more knowledgeable information regarding the business of HOA’s, visit: The Davis-Stirling.com Newsletter
