[Part 2 of a 4-part series]
Mr. Richardson: Our board has had several closed meetings to discuss revisions to our governing documents. An attorney has been present at each of these meetings. Is this not in conflict with the Open Meeting Act since it is not discussing litigation? Does the fact that an attorney is present qualify these meetings as executive sessions? H.B., Carlsbad.
Dear Kelly: If an HOA board goes into executive session about unauthorized topics, must those discussions be kept confidential? Thanks, N.S., Anaheim.
Dear H.B. and N.S.:
Directors have a fiduciary obligation to protect the association’s legally confidential information and to keep it confidential, even from their friends, neighbors, and spouses. A director who does not protect that confidential information can be exposed to litigation and may be outside the directors and officers insurance coverage.
However, if the discussion is truly not confidential and not proper for executive session (for example, discussing the need to raise regular assessments or a landscaping expenditure), then it should not have been kept confidential in the first place. However, check with the HOA’s attorney first about its confidentiality to avoid any mistakes.
HOA attorneys normally meet with boards in closed session because most of the topics discussed are sensitive and regularly involve legal input, and usually connect to one or more of the permitted topics of discussion (most commonly, litigation risk). HOA attorneys should be alert to remind boards when a topic is outside closed session eligibility.
Boards should know and carefully observe closed session boundaries.
Best regards, Kelly
Hello, Kelly: In our small HOA can the board members correspond with each other by email if they copy all the other owners with the messages? Thank you. R.T., San Diego
Dear R.T.: The Open Meeting Act at Civil Code Section 4910(a) allows email deliberations only in case of emergency. Civil Code Section 4910(b)(1) bars deliberations by email in all other circumstances. I understand the logic of simply copying the rest of your small HOA on emails, which might avoid anyone from objecting to the email discussion. However, reserve your discussions for the board meeting. Use emails only to convey updates or information, and avoid opinions or responses to that update or information. I realize that this is an example in which the Open Meeting Act seems impractical, but that is the law we are presently all working under until someone begins to create reasonable alternatives for very small HOAs such as yours.
Best regards, Kelly
Kelly, recently I have seen comments from a director in another association who is using social media sites to vent comments regarding what is being discussed in their association’s executive sessions. What would you suggest that board members do to attempt to get this director to follow the rules? Regards, F.B., Temecula.
A director who publicly reveals executive session information, discussions, or decisions may be violating their fiduciary duty to the HOA. Such breach of trust also harms the HOA’s ability to handle the sensitive matters reserved for closed session. If I know a director is relaying my confidential communications outside the board, I cannot keep copying that director on my privileged communications. Sometimes boards need to consider actions such as suspending that director from closed sessions until they in writing reaffirm their commitment to confidentiality.
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.