When can a Board legally, ethically and meet the spirit of the law have SECRET meetings?
Secrecy doesn’t sit well with many Americans. As President John F. Kennedy said, “The very word, secrecy, is repugnant in a free and open society, and we are as a people, inherently and historically opposed to secret societies, to secret oaths and to secret proceedings.”
Yet secret proceedings are not uncommon in the community association world. Homeowners are often asked to leave for all or parts of board meetings. Minutes of these executive sessions are generally kept secret. At times, boards conduct business by telephone or e-mail to avoid public scrutiny.
Board determines confidentiality
Releasing confidential information could result in claims of defamation, invasion of privacy, violations of statute, etc. The Legislature made such matters confidential for a reason, so boards should be cautious about releasing executive session information. (davis-stirling.com) * Privacy * SB 563
Davis Stirling – Civil Code
§4935 (a) The board may [not shall or must] adjourn to, or meet solely in, executive session to consider [ONLY]
- litigation, [Attorney Client Privilege & More clarification]
- matters relating to the formation of contracts with third parties, — Learn More on Formation of Contracts
- member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665.
(b) The board shall adjourn to, or meet solely in, executive session to discuss member discipline, if requested by the member who is the subject of the discussion. That member shall be entitled to attend the executive session.
(c) The board shall adjourn to, or meet solely in, executive session to discuss a payment plan pursuant to Section 5665.
(d) The board shall adjourn to, or meet solely in, executive session to decide whether to foreclose on a lien pursuant to subdivision (b) of Section 5705.
(e) 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.
I don’t see ANYTHING in Brown or Davis Stirling that allows Boards to discuss finance or budget in closed session. If any site visitors have a citation, please put that in comments below.
Links & Resources
Point of Sunshine Law’s
The strength of a sunshine law (letting the light come in, so everyone can see) depends on its exceptions. Every open-meetings act allows public bodies to close meetings or portions of meetings in some circumstances. School boards, for example, typically can close meetings to discuss student disciplinary cases. Most public bodies also can close meetings to discuss pending litigation, the acquisition of real estate, collective bargaining and individual personnel issues. Minutes from these closed sessions, however, generally must be kept and made public if and when the matter discussed is no longer confidential.
Courts across the country have held that public bodies must limit executive sessions to only those matters permitted. Under a circuit court case, Philadelphia Newspapers, Inc. v. Nuclear Regulatory Commission (1984), for example, federal agencies subject to the Government in Sunshine Act, 5 U.S.C. Section 552b, must attempt to segregate non-exempt portions of meetings from exempt portions and close only those portions of meetings involving exempt topics.1st Amendment Center
If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects. Justice Brandeis (sun light foundation.com)
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