Executive/Closed Sessions


Tempers flared in one small East Coast mountain community when the association board decided to exclude homeowners from its meetings. One irate homeowner wrote on his website: "Did you know that in this 'Live Free or Die' state of New Hampshire, the board insists on closed-door sessions and that the minutes of these meetings, if distributed, are released often months after each session is held?"

A board member defended the decision, saying that closed sessions were necessary because some homeowners were verbally abusive and threatening. "They were screaming and hollering, and we simply couldn't get any work done," the board member was quoted as saying in the local newspaper.


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."


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




Top Secret
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. A general list of valid reasons for going into closed session includes:

arrow consulting with the association counsel regarding legal issues;
arrow discussing litigation or prospective litigation either by the association or against the association;
arrow conferring about contracts or property purchases (after all, it's hard to negotiate if your position is known to all);
arrow reviewing association employees or personnel issues; or
arrow handling disciplinary matters or rules violations by association members.

Homeowners regularly ask if parliamentary procedure permits a board to close its meetings. After all, many community associations as a result of statute must follow a particular parliamentary book. In North Carolina, for instance, statutes mandate: "Except as otherwise provided in the bylaws, meetings of the association and the executive board shall be conducted in accordance with the most recent edition of Robert's Rules of Order Newly Revised." Many more associations follow Robert's due to language in their governing documents.


A far more important question is: What do association governing documents and state statutes say about closed meetings? For instance, the declaration or bylaws of an association may limit the circumstances under which a board can go into closed session. At times, the reasons that a board may go into executive session are listed. Other associations simply provide that "all board meetings shall be open to association members." Generally, such language is too broad an d should be changed because there are warranted reasons for meeting in closed session.




A Maryland statute adds as a legitimate basis for meeting in closed session the protection of "the privacy or reputation of individuals in matters not related to the homeowners association's business" as well as "investigative proceedings concerning possible or actual criminal misconduct." A catch-all provision is also included: "On an individually recorded affirmative vote of two-thirds of the board or committee members present, some other exceptional reason so compelling as to override the general public policy in favor of open meetings."

Confidential Business
Once a board determines that it should and can close its meeting, the next question is how to properly conduct an executive session. Generally, boards do not go into closed session by decision of the chair; instead, the decision to hold an executive session belongs to the full board. While this is sometimes accomplished by a majority vote, it can also be accomplished by unanimous consent. That is, the presiding officer can ask, "Is there any objection to going into closed session to discuss...?" If no one objects, the meeting is closed. If a board member objects, the question should be resolved with a motion and vote.

Obviously, the presiding officer does not detail the specific item of business, which would defeat the purpose of closing the meeting. Instead, the presiding officer should only give the general topic to be considered such as “to discuss delinquent assessments." For associations in states that mandate open meetings, there is generally a statutory checklist for going into executive session. For instance, a Virginia statute provides that a motion to go into closed session "shall state specifically the purpose for the executive session. Reference to the motion and the stated purpose for the executive session shall be included in the minutes."

Maryland's statute goes further and requires that "a statement of the time, place, and purpose of a closed meeting, the record of the vote of each board member or committee member by which the meeting was closed, and the authority for closing a meeting shall be included in the minutes of the next meeting of the board of directors or the committee of the homeowners association." By statute, the consideration of matters during the closed session is usually restricted to those purposes specifically stated in the motion.

Once the meeting is closed, non- members are asked to leave, but certain guests may remain—the association's attorney, for example. Again, state statute may permit certain individuals to attend the closed session. For instance, California law provides that "the board of directors of the association shall meet in executive session, if requested by a member who may be subject to a fine, penalty or other form of discipline, and the member shall be entitled to attend the executive session."


Into The Daylight


In states that mandate open meetings, there are generally statutes that mandate what records must be maintained. For instance, a California statute provides that "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." Colorado only requires that minutes be kept indicating an executive session was held and its general subject matter, but the minutes are treated as all other minutes and open to inspection by homeowners.





Reprinted with permission from the March/April 2008 issue of Common Ground.

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Articles are intended to provide general information and are not legal advice or a legal opinion. Specific questions should be directed to an attorney at Black, Slaughter & Black, PA., or to another lawyer.