Exec Session Agenda
Happy New Year, Dennis.
I have copied the Executive Session Agenda that is sent to members along with the notice of the Closed and Open Board Meetings each month. Is the ES Agenda meeting the requirements of the law?
I. CALL TO ORDER
II. MINUTES
III. § 33-1804/33-1248 A.1 – LEGAL ADVICE FROM AN ATTORNEY
IV. § 33-1804/33-1248 A.2 – PENDING OR CONTEMPLATED LITIGATION
V. § 33-1804/33-1248 A.3 – PERSONAL, HEALTH, OR FINANCIAL INFORMATION ABOUT AN INDIVIDUAL
VI. § 33-1804/33-1248 A.4 – JOB PERFORMANCE, COMPENSATION, HEALTH, OR COMPLAINTS ABOUT AN EMPLOYEE
VII. § 33-1804/33-1248 A.5 – MEMBER’S APPEAL OF A VIOLATION OR PENALTY
VIII. ADJOURNMENT
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Rhonda
This is what is known as malicious compliance. The law requires the association to identify which of the five exceptions applies to the specific reason they are holding an executive session. They cannot do this unless they intend to address all five of those exceptions. So, no, this does not satisfy the law at all; it is a stupid approach to attempt to circumvent the law.
Dennis
I have the very same issue that Rhonda has stated above with our community regarding notices of regular board meetings and closed sessions.
I beleive the two key components that you have to keep in mind regarding the notice of a closed meeting is as follows:
At the conclusion of an open meeting the board can announce to those present the reason for the closed meeting by referencing one of the five authorized exceptions found within 33-1804/33-1248. That action at the end of the open meeting session would satisfy the requirement of the statute.
However, in my case the notice (email) of the open/closed meeting contains only the reference of the 5 authorized reasons that a BOD can hold a closed meeting and nothing else. In addition, the closed meeting always preceeds the open meeting by one hour. This does not satisfy the statute requirement because the notice does not identify the paragraph that authorizes the closed session. Also because the closed session is held prior to the open session there remains no other notice option.
I have gone back and forth with the management company on this issue. They claim the inclusion of the 5 authorized reasons satisfies the requirement . As Dennis notes above we know it does not.
Here’s what missing and is required. I don’t think it could be any more unambiguous.
“C. Before entering into any closed portion of a meeting of the board of directors, or on notice of a meeting under subsection D of this section that will be closed, the board shall identify the paragraph under subsection A of this section that authorizes the board to close the meeting.”
In summary If the closed portion of the meeting immediately follows the open session I would recommend to Rhonda if you are present at the meeting to ask the board which paragraph of the 5 authorizes the closed session. Be prepared to share the requirement statement noted above, That should open the door to delve into this topic within the arena of the open session. I am finding that often times even a formal complaint is not making it into the hands of the BOD. More and more I am calling out issues in an open session and pointing the finger at the manangement company as the culprit which always shakes things up a little.
Perfect
Thank you for your input, Robert. Unfortunately, it seems your community HOA Board and mine have the exact same schedule of meetings. Mine, too, holds their Executive Session one hour prior to the Open Session. Never are the topics of the ES mentioned during the Open Meeting. I did voice my concern over this practice during our most recent Open Session by specifically requesting that, in the future, the topic being discussed be informed as part of the Agenda item for each exception noted. The response provided by our Community Manager was that it was their understanding the method being used does satisfy the law’s requirements. Our Board President instructed that more research into this will be performed and “they will make sure they get it right” for February.
To both of you, the law is clear: the association must identify the specific exception that applies to the subject matter considered in that particular executive session. Just because any community manager or attorney says otherwise does not make it right, and they are wrong in their interpretation. I made that provision into law in 2017, so I know a little about how and why it was made into statute.
Dennis
I appreciate your strong and definitive response and plan to push it with our board for as long as it takes.
Kudos to your board president for at least wanting to do the right thing. I would jump on a committee to present the facts presented in the open meeting laws pretaining to your community. Your commnity manager is using the boiler plate response so often heard when challenging these issues. Bottom line is the communty management companies and their legal opinion department are not accountable for their advice or the resulting actions.
I would recommend impressing upon your BOD that the duty and obligation regarding the compliance with the declaration and the state law is completely upon them. As Dennis has implied, the law in this particular issue is crystal clear.
Following up on this question about satisfying law when formulating an agenda for the Executive Session, which our BOD routinely schedules and holds during the hour preceding the Open Meeting. This is the agenda for next week.
Does this agenda look like it meets the requirements?
I. CALL TO ORDER
II. MINUTES
III. § 33-1804/33-1248 A.1 – LEGAL ADVICE FROM AN ATTORNEY
A. A.1 – APPLICABLE
IV. § 33-1804/33-1248 A.2 – PENDING OR CONTEMPLATED LITIGATION
A. A.2 – APPLICABLE
V. § 33-1804/33-1248 A.3 – PERSONAL, HEALTH, OR FINANCIAL INFORMATION ABOUT AN INDIVIDUAL
A. A.3 – APPLICABLE
B. DELINQUENCY REPORT
C. COLLECTION STATUS REPORT
VI. § 33-1804/33-1248 A.4 – JOB PERFORMANCE, COMPENSATION, HEALTH, OR COMPLAINTS ABOUT
AN EMPLOYEE
A. A.4 – NOT APPLICABLE
VII. § 33-1804/33-1248 A.5 – MEMBER’S APPEAL OF A VIOLATION OR PENALTY
A. A.5 – APPLICABLE
B. FEE WAIVER REQUEST
VIII. ADJOURNMENT
Rhonda,
While some could argue that the delinquency report is not subject to closed session discussion it is generally accepted that this would constitute personal financial information that I also support. Violation issues would not. As for the appeal of a members fine or violation it is allowed in executive session at the option of the homeowner not the board. The association must inform the member of that option under the law prior to dictating that appeal being heard in executive session. I see no real problem with this agenda subject to my comments.
Dennis
Thank you. I was willing to concede on this one as my first response. I do appreciate the Board President putting forth the effort to make a change! I appreciate your feedback.