Executive Session
Hi Dennis – I have been reading back through your old posts to educate myself about the rules governing Executive Sessions. Our Board holds the ES meeting prior to the open meeting and they typically do provide the agenda 48 hours in advance (a couple of months were missed in the past). However, all they do with regards to justifying ES is list the 1-5 rules at the to; of the agenda. If I am reading your posts correctly, it sounds like each item on the agenda should have a notation of which of the 5 rules apply to that topic. Am I correct?
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Rhonda,
You are correct. whatever they discuss in executive session must satisfy one of the 5 exceptions to open meetings. They cannot use one exception for one issue and then discuss other issues that do not satisfy one of the 5 exceptions.
Dennis
To clarify:
The agenda we are provided has the rules listed, straight off of the ARS.
Then the meeting order is provided.
As an example from our most recent agenda:
Call to Order
Minutes
Delinquency Report and Attorney Status Report
Waiver Request and Payment Arrangement Requests
Violation Report
But none of those entries has the rule attached that is applicable to make that topic appropriate for Ex Session. So, though the list of rules is provided at the top of the agenda page, the actual items are not noted in terms of which rule applies. I am wondering if our Board or Management Company is wrong in their agenda format.
Rhonda
What was cited as the exception provision in the notice of the meeting. From the three agenda items you could argue that the first item was covered by financial issues of homeowners and attorney advise. The financial link is a very weak one and, in my opinion, should be covered in open session under the policy statement in the law. The second item depends on what a waiver addresses if you are waiving fees for some individuals while not for others unless justified by specific financial circumstances with that homeowner. The act of waiving the fees is not allowed in executive session but the discussion and consideration of the financial circumstances of the individual is allowed, if you are waiving enforcement of rules, you can do that but only in open session. One point here closed session exceptions are allowed only for “consideration” of issue or advice. The word “consideration” does not include action so under the law all actions must be held in open session and before the board votes on that action it must be open for comment by any community member present at the meeting. Rule enforcement is not personal information and in fact is public and must be done only in open session. The violation report is again not personal information and therefore cannot even be discussed in executive session. If the association can see a violation, then anyone in the community with a copy of the governing documents can also see the violation. This is the most common violation of the open meeting laws.
The problem with the open meeting law compliance is that association advisors both community managers and attorneys try to stretch the interpretation of the law far beyond it’s true intent. Violations of community documents are not personal information and cannot be discussed in executive session, failure to pay assessments are not true financial information of an individual and as such should not be discussed in executive session. Read the policy statement at the end of the statute. It says that any if there is any doubt about an issue legitimately being considered in closed session then it must be discussed in open session. You must default to open session for anything that is not clearly personal and confidential or protected by attorney client relationship. The policy statement is written to prevent the interpretation of issues to favor closed discussion and specifically instructs both board members and community managers to do the opposite and default to open discussion of issue. If I could have included attorneys in that section I would have, but the constitution prevents one branch of government from dictating what a separate branch of government can do. Attorneys belong to the Judicial branch of government, so the Legislature and the Governor cannot dictate what an attorney can or cannot do.
Dennis
This is an extremely helpful clarification you have provided, Dennis. Much more than I had expected. Thank you (which doesn’t seem to do justice to the amount of time and attention you gave this question of mine!)!!