What is an executive session? Are closed meetings even permitted in an HOA or condo community? These are questions that many homeowners ask. To avoid liability and complaints, board members must follow the rules of executive sessions and clearly communicate how they work.
What is an Executive Session?
An executive session is a private meeting of an association’s board. Attendance is restricted to board members and invited guests, who may include managers, professionals, and certain owners. At this closed meeting, the board discusses highly sensitive and confidential matters.
In an HOA or condo association, board meetings allow leaders to conduct business and keep operations running. Discussions and votes are usually open for owners to observe. That said, for certain topics, the board can convene in a closed session to protect private information.
Is an HOA Executive Session Legal?
Whether an association can conduct an executive session depends on state law and the governing documents. Most boards have permission to meet behind closed doors, but they must adhere to specific requirements.
In Virginia, both HOAs and condominiums are allowed to hold executive sessions. This is according to Section 55.1-1816 (for HOAs) and Section 55.1-1949 (for condos). Before meeting in closed session, the board must first hold an open meeting and vote to enter executive session.
If state laws are silent, board members should refer to their CC&Rs and bylaws.
What Can Be Discussed in an Executive Session?
Association boards can’t just discuss anything in an executive meeting. State laws and most governing documents are explicit about which topics may warrant a closed meeting.
When can the board meet behind closed doors? In Virginia, the board can go into executive session only for certain items, such as:
- Employee or personnel issues
- Discussions with the association’s attorney
- Contracts that are under negotiation
- Lawsuits or potential lawsuits
- Violations of the governing documents or rules
- Delinquent dues or other owner debts owed to the association
This is according to Section 55.1-1816 (for HOAs) and Section 55.1-1949 (for condos).
Who Can Attend an Executive Session Board Meeting?
In general, board meetings must be open to all homeowners or their representatives, but executive sessions are not. Homeowners are not permitted to attend a closed board meeting unless they are invited.
When can a homeowner join an HOA executive session? Typically, the board will invite an owner to attend a closed board meeting if the matter of discussion relates to them. For example, if the board intends to discuss a rule violation an owner is accused of committing, it may ask that owner to appear.
What are the Executive Session Board Meeting Rules?
As per Section 55.1-1816 (for HOAs) and Section 55.1-1949 (for condos), boards must follow the HOA executive session rules below.
Open Meeting and Motion
The HOA or condo board can’t simply meet in executive session whenever they wish. The law requires certain steps.
What must happen before the board goes into executive session? First, the board must hold an open meeting. It must fulfill the requirements of an open meeting, including notice and agenda items.
When the open meeting is underway, the board can vote to enter executive session. The motion must clearly state why the board is going into a closed meeting.
For example, a board member can say, “I move that the board enter the closed session to discuss a delinquent account.” According to Robert’s Rules, another director must second the motion before it can pass.
Notice and Agenda Requirements
Can the board discuss anything it wants while in a closed meeting? No. Once in executive session, the board must stick to the topic stated in the motion.
Some boards may want to use the closed meeting to discuss unrelated association business in private. This is a clear violation of the law and the board’s fiduciary duties. Doing so will increase the association’s legal exposure and the board members’ personal liability.
Decision-Making
Can the board make decisions in executive session? In general, the board can discuss permitted topics while in a closed meeting, but it can’t make final decisions.
Discussions may be private, but if the board wishes to make an official decision, it must return to the open meeting. Once back in open session, the board will vote on the matter and finalize the decision. Examples include approving a contract, taking enforcement action, or settling a lawsuit.
HOA Executive Session Minutes
Associations must take minutes of board meetings. While closed sessions must remain private, the minutes must still reflect key actions. The minutes must show that the board voted to enter executive session and the reason for it.
Additionally, the meeting minutes can show that the board took a vote or made a decision without disclosing specifics. For example, the minutes can say that “the board approved an enforcement action.”
Confidentiality of Information
Specific details of closed discussions must be kept private. Under Virginia law, the board does not have to disclose information that the law itself protects. These include attorney-client communications, personal employee information, and information protected by privacy laws.
So, while the board must disclose the general action that it took, it does not have to reveal confidential details that would violate the law.
What is an Executive Session? Answered!
Closed board meetings may cause some ears to perk up, but Virginia law does allow them. Of course, board members must act with care when holding such meetings. There are certain requirements and procedures to fulfill to avoid invalidating decisions. If the board follows the rules to the letter, owners would have no reason to question the board’s credibility.
Keymont Community Management offers expert management services to associations in Virginia, Maryland, and Washington, DC. Call us today at 703.752.8300 or request a proposal to start your journey!
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