What’s Executive Session and When Can We Use It?
An executive session or “closed door session” is a portion of a board meeting that is not open to attendance by the homeowners. Although the Colorado Common Interest Ownership Act (“CCIOA”) generally requires board meetings to be open to attendance by homeowners, Section 308 of CCIOA sets forth the “executive session” exception that allows a board to exclude homeowners from attending a portion of the board meeting.
Under what circumstances can a board go into executive session? The exception limits the use of executive session to discussion on the following matters:
- Matters pertaining to employees of the association or the managing agent’s contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
- Consultation with the association’s legal counsel regarding pending or imminent litigation or matters that are privileged or confidential between attorney and client;
- Investigative proceedings concerning possible or actual criminal misconduct;
- Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
- Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy;
- Review of or discussion relating to any written or oral communication from legal counsel.
These are the only purposes for which a board may go into executive session and restrict attendance by homeowners. All other matters such as reviewing accounts receivable, discussing maintenance, etc. are to be discussed and decided during an open meeting, unless special circumstances exist which justify an executive session.
In order to properly go into an executive session, the meeting must be called to order. If other business is to be conducted at the meeting, this may be done before or after the executive session. When the board is ready to go into executive session, the chair must announce the general matter to be discussed. The minutes of the meeting must state that an executive session was held and the general subject matter of the executive session. For instance, the minutes may state:
At 8:15 p.m. the board went into executive session to discuss a covenant enforcement lawsuit with the Association’s attorney. The board emerged from executive session at 8:45 p.m.
As a general rule, the minutes should not state the details of what was discussed during the executive session. In the past, the minutes were a record of the association, available for review by the owners and therefore should not contain details of what was discussed or the decision that was made if disclosure of the discussion or decision could be harmful to the association. However, HB1237 (which took affect 1/1/2013) now authorizes associations to withhold executive session records from inspection by owners. Nevertheless, such records may still be discoverable in the event of a lawsuit, so boards should be careful about what they put in the executive session minutes.
It is important to not confuse the terms executive session and working session. Some boards hold a “working session” outside of regular meetings to work on items such as budgets, contract specifications, revisions to rules and regulations, and amendments to the governing documents. There is generally no board action taken during working sessions. We recommend that such working sessions be open to attendance by homeowners. An “executive session,” on the other hand, is a portion of a meeting at which board action may be taken. Although the board may make decisions and take action during an executive session, it cannot adopt rules and regulations. These must be adopted during an open meeting. Finally, there are no limitations with respect to topics for discussion during a working session, but matters to be discussed during an executive session are limited to those set forth in items 1 through 6 above.