MAY A DIRECTOR IN AN HOA INSPECT ALL RECORDS? INCLUDING EXECUTIVE SESSION MINUTES?

In light of my newly adopted in simpler processes to get information to my readers, I will provide a short answer to the following question that was raised by a follower of my website and blogs:

“When an HOA member is elected to the Board of Directors for the first time, does he or she have the right to see the confidential Executive Meeting minutes from prior months/years?

That’s it! I suspect this may be a case of me thinking it’s an easy question and you telling me it’s not (as I see so often on your blog), but maybe this question will be an exception  :)”

 You know, I wish I could say this was a simple question, but I will make the answer is simple as possible:

In California, a director on the board of directors of an HOA which is incorporated is also subject to the Corporations Code and under that code, a director is entitled to see all Association records. However, that’s not the end of the inquiry. There is a case in California where a board member was not allowed to see proxies, the court believing, because it was argued, that he had improper motives in reviewing the proxies-he wanted to see who voted against him!  This was back in the day when proxies could be counted as ballots. The court said this director was elected, so he didn’t need to see the proxies.

Since this is an appellate court decision, and binding law in California, it suggests to me that if the board suspects the board member has an ulterior motive which is not positive and is wanting to review executive session records, that the board get legal advice as to what to do. If, for example, the board member is prone to distributed or suspected of distributing confidential information to owners, or if the director has indicated that he or she is planning to sue the Association and is looking to dig up “dirt”, I would definitely recommend the board get legal advice before opening up executive session protected records. I have written in other blogs about how to set up an executive committee excluding a director if the director is misusing information gathered in an executive session and excluding the problem director. Please note I strongly recommend you do not do this without legal advice from a knowledgeable HOA attorney. I can easily imagine the deterioration that may occur as the fights begin without anyone understanding the legal ins and outs of the situation.

 

 

 

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