(Updated on 4/2/13 and again on 4/28/13 – Please scroll down to the colored indicators)
I believe the Board is not following its own policy in the use of Executive Sessions. The purpose of this paper is to explain how I believe this is happening. If you read this and agree, I ask only that you let your opinion be known to the Board. Please be patient, since this can’t be explained in a tweet.
The State of North Carolina recognized the power of homeowner associations when it passed the Planned Community Act in 1998. The provisions of this act are part of our covenants. In many respects, our POA is very similar to a city government. It can impose regulations, levy assessments, levy fines and, in certain circumstances, subject your property to a foreclosure sale. Therefore, I think most would agree that it is important for the Board be as transparent as possible in its dealings and deliberations.
Executive Sessions allow the Board to have private discussions behind closed doors. Nobody from outside is privy to the discussion details, but any action taken as a result of those private discussions must be done in an open meeting. According to the Board’s policy, the specific items to be discussed must be disclosed for the official record before going into Executive Session.
Nobody should be totally against the idea of Executive Sessions. In certain circumstances, it is necessary to foster a frank and open discussion. But the power to go behind closed doors can be abused. Last year, our Board passed a resolution outlining the circumstances in which Executive Sessions can be used; and I believe it is a very sound policy. That resolution can be found here: Meeting Protocol Resolution
This resolution requires the presiding officer to state for the record the items to be discussed in the session. Nobody should have to ask. Furthermore, it outlines the reasons for which an Executive Session can be called. It seems that my interpretation of this policy is different from that of the Board. I am asking you to judge my interpretation based on your reading of the policy.
The policy says the following: “Legitimate reasons for closing a meeting generally concern issues that – if discussed in public – could violate privacy laws or harm or cause embarrassment to the association or another party.”
Therefore, the overall idea behind the policy is to ensure that the Board can discuss sensitive material in a frank and open manner without fear of compromising its legal position, hurting its negotiating position or causing embarrassment to any third party (primarily referring to our residents). At the same time, though, the community should know the issue being discussed. Here are some examples of what I believe most people would consider proper reasons for going into Executive Session along with brief explanations:
To discuss possible foreclosure actions: It would not be appropriate for outsiders to hear the names of the residents subject to the foreclosure proceedings. But the disclosure informs the community of the specific issue being discussed; and that disclosure does not hurt the POA or its residents in any way.
To discuss a specific lawsuit: It might compromise the POA’s legal position to have details of legal strategies leaked, but the disclosure allows the community to know that the discussion has to do with a specific lawsuit. And, since the lawsuit would be a matter of public record, disclosing the name of the lawsuit does not hurt the POA’s legal position.
To discuss contract negotiations: Again, it might compromise the POA’s negotiating position if strategies were leaked. But there is no harm in disclosing the contract being discussed, since that will not harm the POA’s position in any way.
To discuss staff and/or personnel matters: That this is appropriate should be self-evident. The issues discussed can be personal and sensitive. But disclosing that the issues to be discussed are personnel matters does not harm anybody or release sensitive information.
To discuss a potential legal action: Again, this is a valid reason so that strategies can be discussed without fear of compromising the POA’s legal position. If the lawsuit has not yet happened, it would be reasonable to not disclose the name of the party involved. I believe that stating “a potential legal action” as a reason for an Executive Session would most likely be acceptable to residents and would not harm the POA’s legal position.
Now, here are the two Executive Session discussion items given by the Board with which I have issues:
To discuss financial matters: This was the initial reason given for the January session and also the reason given for the most recent session. I don’t see “financial matters” as a sensitive issue where the disclosure of details could harm the POA. On the contrary, one could easily argue that “financial matters” should never be veiled in secrecy; unless they are the subject of a legal action; in which case that can be disclosed. Stating that “financial matters” need to be discussed behind closed doors implies that something might be seriously wrong or that the Board is trying to hide something from the residents. In the past three months, the Board has felt the need to meet twice behind closed doors over “financial matters”. What are residents supposed to think is happening? Lastly, I don’t see how “financial matters” falls within the guidelines of the Board’s written policy; which states that discussion items should be those where disclosure of details will violate privacy laws or harm or cause embarrassment to the association or another party.
To discuss legal matters: This was the second, amended reason given to me when I questioned the original reason of “financial matters” in January. I don’t believe this is adequate because it covers too broad a range of issues and arguably can be used to hide information from the residents. As shown in the previous examples, the Board can disclose the specific nature of the legal matter without harming its position. I believe providing such a broad reason is not consistent with the intent of the policy nor do I think it is consistent with the desire of the Board to be transparent in its dealings and deliberations.
I have sent the following communication to the Board:
I request that, in the future, the Board follow its Meeting Protocol Resolution # 3 when calling for Executive Sessions. I am referring primarily to the following aspects of that resolution.
First, I believe that the reason for the Executive Session should be consistent with the resolution; meaning the session should only deal with items where disclosure of details will violate privacy laws or harm or cause embarrassment to the association or another party. I do not believe a stated reason such as “financial matters” qualifies in that respect.
Second, when stating the reason for the session, I believe the Board should provide a reasonable amount of information. For example, if a legal issue requires an Executive Session, I believe adequate details should be disclosed; such as a specific lawsuit or, without mentioning names, a possible legal action either against the POA or to be undertaken by the POA. Disclosure of such details will not hurt the POA or any individual, and it would be consistent with the Board’s policy. And, if the Board is taking legal advice, it should disclose the general nature of that advice; assuming that such disclosure will not violate privacy laws or cause harm or embarrassment to the association or another party.
The Board adopted this resolution, so there is no reason why it should not be followed. In addition, I believe this request is consistent with the Board’s desire to be transparent in its dealings and deliberations and that it will not harm the Board’s position in any way.
If you agree, please send your message to all the directors. Otherwise, they will assume you do not care one way or the other. If you wish, you are welcome to use any or all of my language. If you disagree with me and believe the Board is acting properly, feel free to let them know that as well. I have provided you with the Director’s e-mail addresses below, and you should be able to simply cut and paste them into your message.
If you are willing, please copy me on any notice you send. I promise to keep anything you send in confidence, and I have included my address at the end of the list below. I do not wish to raise issues in meeting summaries that are of no concern to residents. I have assumed you would consider this to be a significant issue. If nobody responds to the Board, then I will know my assumption was wrong; in which case I will avoid mentioning this issue in the future.
I need your feedback to make this judgment, and that will only come from my receiving copies of your messages to the Board.
Thanks for considering my request.
Board e-mail addresses:
[email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]
UPDATE – 4/2/13 (Further update on 4/28/13 below)
I am offering this as a follow-up to those of you who wrote to the Board or those who are otherwise interested in this topic.
A number of people wrote to the Board (along with me), and I received copies of some responses. All information received can be distilled into the following two points.
I learned that the first part of the most recent Executive Session was to advise directors on their fiduciary obligations and their legal rights and obligations relevant to their service as directors. Fiduciary obligations refer primarily to a director’s obligation to act in an honest, trustworthy, unselfish and responsible manner. In response to an inquiry, the Board stated that, in retrospect, that portion of the discussion probably did not have to be in Executive Session.
The second issue had to do with following the guidelines of the Board’s Meeting Protocol resolution when stating the reasons for calling an Executive Session (discussed in more detail above and in the 3/19/13 Meeting Summary). The Board has responded on this issue as follows:
The Board recognizes its obligation for openness, but understands that it is sometimes appropriate to meet in executive session. The Board has every intention of following its POA Board Meeting Protocol.
FURTHER UPDATE – 4/28/13 Explanation of Resolution # 7
In that last Board response (above), you might have read between the lines that, in the future, it intended provide more detailed and better reasons for convening Executive Sessions. By adopting the revised protocol in the new Resolution # 7, it appears that might not be the case. At the time that response was written, the Board obviously knew that it would be changing the protocol to allow for a greater ability to meet in closed sessions. Therefore, they were probably comfortable saying they “had every intention of following” the protocol, because they knew they would be changing the protocol to give the Board the ability to go behind closed doors anytime it wanted to do so.
Understanding this new resolution and the powers that it gives the Board is not something that can be explained in a few sentences. If you want to understand the situation, I encourage you to read this all the way to the end.
Here are links to the old and new resolutions: Resolution # 3 Resolution #7
The new resolution formalizes three categories for Board meeting deliberations; Open Sessions, Closed Sessions and Executive Sessions. The new category is the “Closed Session”.
Closed Sessions can be used “to have a free and open debate on a given topic without concern for censorship or misinterpretation of motive or wording”. Executive Sessions can be used generally as outlined in the previous resolution; namely when public discussion of an issue could violate confidentiality, compromise the negotiating position of the Board or cause harm or embarrassment to the POA or another party.
One quick aside to explain an interesting anomaly. According to Robert’s Rules of Order Newly Revised (RRONR), Executive Sessions are essentially closed sessions. It appears there is no defined “Closed Session” separate from Executive Sessions. Our old Resolution # 3 referred to the Board’s intent to conduct meetings in accordance with RRONR. But the new Resolution # 7 makes no such reference; probably because there is, I believe, no formally defined “Closed Session” in RRONR. Hence my earlier comment about this formally defined “Closed Session” possibly being unique to our POA.
What follows is a summary of the mechanics of each type of session:
Open Sessions:
Residents can attend and listen but cannot speak unless invited to do so. Minutes are taken and then distributed to Board members for approval after the meeting. Usually these minutes are approved at the next meeting and then become part of the official record. Residents can read the minutes only after being officially approved.
Closed Sessions:
Only Board members and invited parties can attend these sessions. They are convened by a majority vote of directors for any reason but without necessarily stating the reason. I realize that sounds contradictory, but that appears to be the essence of the language used. The resolution says that the desire to have a “free an open discussion” is sufficient reason to convene a Closed Session. But it does not require the nature of the discussion to be disclosed.
Anything can be discussed and any action can be taken during a Closed Session. Motions can be made, discussed and voted upon in a Closed Session.
Minutes noting all matters brought before the Board are to be taken during the Closed Session just as they would be during an Open Session. This will result in one set of official minutes for both sessions. Again, these are available to residents only after being approved by the Board; which is usually at the next meeting.
Executive Sessions:
These are convened by a majority vote of all directors, and the reason for the session must be stated for the record. The reasons should concern issues where public discussion could violate confidentiality, compromise the negotiating position of the Board or cause harm or embarrassment to the POA or another party.
No minutes are to be taken during Executive Sessions, but no actions can be taken either. For any action to be taken, the Board must reconvene in Open Session, make the motion and vote accordingly. That allows the action to be included in the official minutes.
For what it is worth, here is my assessment of this situation. I believe this will adequately outline the consequences of this new resolution.
The Board is starting from the premise that, if it so chooses, all meetings can legally be closed. By creating this new, formal category of “Closed Session”, it is giving itself the option of conducting its deliberations and community business in private anytime it wishes for any reason whatsoever.
The next obvious question is, “How will residents know what was done in Closed Sessions?”. I believe the Board’s answer will be that residents must rely on the official minutes unless it chooses to voluntarily release information. If so, I believe there are several potential problems of which residents should be aware.
First and most significant is the fact that the Board has made it clear in previous discussions that it intends to deliberately put as little as possible into the official minutes. If you read past minutes, you will see that they are very slim in terms of information offered. You can determine that an issue was discussed, but you will never be able to determine the tenor of the discussion, opinions expressed, or the nature of any debate. You will learn if a motion was made and voted upon, but you will not learn why the motion was made or the pros and cons that might have been discussed before the vote.
Second, the official minutes are usually made available to residents a month after the fact and only after a subsequent meeting. That might present practical problems. For example, if a contentious issue is discussed in Closed Session in a March meeting and then tabled to the April meeting, nobody would know about that until after the April meeting had taken place; because the approved March minutes would not be available until after the April meeting had concluded. Therefore, the Board would have been able to vote on that issue in the April meeting without any residents even being aware of the issue being considered.
Third, if the Board decided to voluntarily release information related to a Closed Session, it would be limited to what the Board decided it wanted the community to know. And that may not always be what the community should know. Case in point: If you read the latest Splinters e-mail, you will see the reference to this new Resolution # 7, but there is no explanation of why it was approved or the practical effects of it being approved. It is simply mentioned in passing. Nor is there any such information in the official minutes of that meeting. Right now, that information can only be found here.
In addition, the creation of this new “Closed Session” renders moot any concerns or discussions about the reasons given for convening an Executive Session. If there is any question as to whether the subject matter qualifies for convening an Executive Session, the Board will simply convene a Closed Session; because no reasons need to be given for doing so.
In sum, the Board has created and approved a protocol which gives it unlimited ability to meet behind closed doors and thus limit information available to residents. And it is claiming that this new protocol is within existing legal guidelines.
(Editorial Comment: I have never been against the concept of Executive Sessions. My only concern has been that they be used properly and not to simply hide information from residents.
When I broached this subject in March, my concern was, I believe, valid and simple to understand. When the Board stated a reason for convening an Executive Session, I felt it reasonable to expect that anybody should be able to look at the reason and say, “Yes, I see that to be a valid reason for meeting behind closed doors”.
The old Resolution # 3 gave examples of valid reasons for convening an Executive Session. My opinion was that most people would not consider “discussing financial matters” to be a valid reason; because it is hard to see how discussing our finances would cause embarrassment to any third party or compromise the Board’s position in any way. Therefore, I did not think this reason was consistent with the guidelines in Resolution # 3.
I wrote the Board expressing my concerns, and I know many of you did so as well. I did not expect that the Board’s response would be to approve a new resolution that gave it unlimited ability to meet behind closed doors without giving any reason. The message seems pretty clear. The Board feels it has the legal right to close all meetings and will always leave open the option of doing so in whole or in part. It does not wish to hear of or consider the concerns of residents in this matter.
The Planned Community Act does not address the issue of open or closed meetings. Rather, it defers to the association’s covenants and by-laws. Unfortunately, our covenants and by-laws do not specifically require open meetings; hence the position of the Board that all meetings can be closed. Given the ability of the Board to levy assessments and to foreclose on our property if not paid, I believe it is not too much to ask that meetings be open.
If residents have a problem with the Board’s position, it now appears the only solution is to find and elect people to the Board who are willing to change the by-laws and/or support changing the covenants to require open meetings and thus to ensure transparency in the Board’s deliberations and actions.)