Executive Sessions – What Can Boards Talk About in Them? What if the Board Ignores the Law?

I get many questions about executive session meetings, what is allowed, and whether or why some boards tend to meet in private so much.

Here is a question from a reader I recently received:

“I tried to find out what the status is of a non-emergency action taken by the Board in Executive Session which is not within the categories of subjects allowed to even be discussed in Executive Session under Civil Code 1363.05. Assume no provisions in the condo docs which conflict with  Davis-Stirling or the Civil Code.

I, and your readers probably, would appreciate your general comment/guidance on that issue.  It’s one thing to know what can not be discussed or action taken in Executive Session.  Quite another challenge to identify the status of an action so taken.”

So the question is not what a board can discuss in executive session, but what can an owner do if they believe that the Board has discussed an item in executive session that was not appropriate for discussion in that confidential setting.

For those of you not familiar with Civil Code Section 1363.05 about executive sessions, here is what is allowed:

” (b) Any member of the association may attend meetings of the Board of the association, except when the board adjourns to executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the members payment of assessments as specified in Section 1367 or 1367.1. The Board shall meet in executive session, if requested by a member who may be subject to a fine, penalty, or other form of discipline and the member shall be entitled to attend the executive session.”

Thus, Boards should not close meetings to discuss financial matters, budgets or fiscal issues that are not specifically excluded from open meeting topics.  A board may discuss attorney communications in executive session. Those are protected by another area of the law related to evidence.

 The law goes on to say:

“(c) 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.”

The purpose of this language is to assure that owners receive information when the board meets in executive session about the topic discussed.

Now, what can an owner do if the Board meets in executive session when it should not?  Well, there is a remedy in the law (see the quote below from the statute that applies). My only cavaet is that an owner might want to choose his or her battles carefully.  I believe it is always best to try and work things out without taking drastic measures. Sometimes using methods that engender accountability is better such as making a written complaint and asking for a change in practice. Sometimes, providing the board with information about the inappropriateness of the action  and quoting the law or perhaps even one of my blogs or other information from the web (make sure the source is credible) works. Understanding the law is important and sometimes the owners have more time to do the research and find answers than the board does. It is worth a try. An owner who is unhappy about board practices can always ask for a meet and confer meeting with the board, or run for the board in the next election. And if all else fails, there is this remedy (just remember that the challenging owner has to prove their case):

“1363.09. REMEDIES.  (Operative July 1, 2006.)

(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by an association of which he or she is a member, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues.  …

(b) A member who prevails in a civil action to enforce his or her rights pursuant to this article shall be entitled to reasonable attorney’s fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that
each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.”

This statute provides a remedy for any violation in “Article 2.  Common Interest Development Open Meeting Act” which covers elections and meetings in homeowners associations.

If you are not already signed up for the FREE E-newsletter, better do so today! I am working on the September edition (a little late because I have been moving my residence this month and it has taken a lot of energy). The subject is the new law on executive sessions!

Check it out at www.californiacondoguru.com/mainpage.html … and sign up now!

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