After an open board meeting, board members typically have the option to convene in an HOA executive session. This session is a closed-door meeting in which the board discusses sensitive matters. Understanding the requirements for this meeting and the topics that may be discussed is important to avoid liability for the board.
What is an HOA Executive Session?
The HOA board is responsible for making decisions for the association. These decisions, along with discussions, take place at regularly scheduled board meetings. When the topic involves a sensitive or confidential matter, the board will then adjourn to an executive session.
An HOA executive session is a closed-door meeting open only to board members. While homeowners are invited to attend regular board meetings, they can’t join executive sessions. At the executive session, board members discuss and vote on private or privileged issues. This session usually happens after an open board meeting.
Is Executive Session in HOA Meetings Allowed?
Whether HOA boards can conduct executive sessions depends on two factors: state law and the governing documents. In Washington, D.C., Section 42–1903.03 of the Condominium Act allows condo boards to adjourn to executive sessions after a motion and a vote. It is important to check state laws before proceeding with a closed meeting.
Sometimes, state laws are silent or defer to the association’s governing documents. In such cases, board members must check their bylaws to determine whether they may convene in executive session. The bylaws will usually specify when and how the board can hold a closed meeting.
What Happens in an HOA Executive Session?
As with the above, state laws and the governing documents determine what the board can and can’t discuss or vote on at an executive session. Generally, the board may table anything private, sensitive, or confidential for a closed meeting. Common examples include:
- Pending or Anticipated Litigation. If the association is a party to an ongoing or upcoming lawsuit, the board may discuss it at an executive session.
- Unexecuted Contracts. Boards may discuss contracts, leases, or other commercial transactions that are still under consideration or negotiation.
- Violations. To maintain confidentiality, boards can adjourn to an executive session to discuss homeowner violations and any anticipated disciplinary action.
- Delinquencies. As with violations, the board typically discusses delinquencies behind closed doors to protect the identities of delinquent owners. This includes any collection efforts the board intends to make, such as liens and foreclosure.
- Personnel Matters. Any actions related to the association’s employees are discussed at closed meetings.
- Legal Counsel. If the board wishes to consult the association’s lawyer on matters or issues, they may do so at an executive session.
- State or Local Formal Proceedings. This refers to official complaints or legal actions that are filed with a government agency or hearing body.
HOA Executive Session Rules
Just like open board meetings, executive sessions are subject to certain rules and requirements. Board members may find these rules under state laws and their association’s governing documents.
Motion and Vote Requirements in D.C.
Section 42–1903.03 lays down the motion and vote requirements for executive sessions. If the board wants to go into executive session, someone has to make a motion that clearly states the purpose. They can’t just say they are going into executive session. They must state the specific reason, such as discussing a legal matter, a delinquent owner account, or a personnel issue.
The meeting minutes must also reflect the purpose of the executive session. This way, the membership can still see why the board went into executive session even if the meeting is private.
Agenda Requirements
Section 42–1903.03 also outlines the limitations of what the board may discuss at the closed meeting. Once inside the executive session, the board can only discuss the topic stated in the motion. They can’t use that time to discuss unrelated matters.
HOA Executive Session Minutes
If the board makes a decision while in executive session, that decision must still be recorded in the minutes of the open meeting. In other words, the board must document the fact that the action took place. The board does not have to reveal confidential details, but it must show that a vote or formal action took place.
The official minutes must also record any action approved in executive session. These minutes must be made available to all owners who are in good standing. This way, owners can see which decisions the board made and which actions were authorized, even if they can’t see the private discussion behind them.
That said, the board does not have to disclose anything that would violate the law. For example, it can’t reveal protected personal information or attorney-client privileged communications just to comply with the minutes requirement.
Can Homeowners Attend HOA Executive Sessions?
Regular board meetings must be open to all association members or their representatives. This means that owners can attend board meetings, observe discussions, and watch board votes. Homeowners can also voice their concerns during the open comment portion of the meeting.
Executive sessions work differently. These sessions are not open to homeowners or their representatives. Board members are the only ones who can attend these closed meetings, but the association’s manager or attorney may also join. Sometimes, the board will invite other third parties to attend if they are relevant to the discussion.
Homeowners may not like the idea that boards hold closed meetings, but these meetings should not happen at every regular board meeting. Executive sessions serve a specific purpose, so if there is nothing to discuss, there should be no need for a session. When the board adjourns to a closed meeting, it is important to clearly state the purpose to avoid losing residents’ trust.
Avoiding Liability
The HOA executive session exists for a reason, but board members should never abuse it. There are only a handful of things that the law permits for discussion at a closed meeting. Attempting to go over these limitations can result in liability for the board.
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