When can a Board legally, ethically and meet the spirit of the law have SECRET meetings?

Jim Slaughter JD, Parlementarian
Jim Slaughter JD, Parliamentarian

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.  

On one level, it’s ironic.  For every board that keeps residents out of board meetings, many others are begging for more homeowner involvement.  Jim Slaughter.com    pdf

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]

(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.

See also Meet & Confer
1363 (g)
Civil Enforcement $500 penalty for failure to comply old 1363.09  Section 4955 
california condo guru.com
hearing.rights.details

(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.

Davis Stirling.com on Executive Session

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

1st Amendment Coalition Primer – Closed Session

jimslaughter.com/Executive-Session–Closed-Meeting-Issues  

Child Pages

Decision making outside of a Board Meeting – Video

Brown Act - Very similar to Davis Stirling - Learning Video

9 comments on “Executive – Secret – Session §4935

  1. If an HOA board discusses unauthorized topics in Executive Session, and also votes on said unauthorized topics, is the unauthorized business conducted valid, and is the discussion regarding the unauthorized topics required to stay confidential?

    If a board director is concerned about unlawful activity, do they have a duty to bring the matter up in open session?

    • By unauthorized topic, you mean something not allowed per Section 4935 above right?

      I would say the vote is not valid.

      The discussion can’t remain confidential.

      Yes, I would say a board member needs to get this thing fixed.

      Give me a day or so to find the citations. I’m not an attorney and can’t give legal advice.

      • The Board needs to fix this, before someone takes them to court to enforce it!

        Civil Code §4955. Civil Action to Enforce Article.
        [Old: Civ. Code §1363.09(a)-(b)]

        (a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues.

        (b) A member who prevails in a civil action to enforce the member’s rights pursuant to this article shall be entitled to reasonable attorney’s fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.

        (Added by Stats. 2012, Ch. 180, Sec. 2. Effective January 1, 2013. Operative January 1, 2014, by Sec. 3 of Ch. 180.) https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4955#axzz2CR2ljirY

  2. My California Community assoc published all the executive minutes in the public website available to anybody not just members.

    They discuss personnel matters, fines, small claims litigation, and people who are critical of the assoc.

    Are they personally liable?

Leave a Reply

Your email address will not be published.