Why does our lawyer participate in closed sessions? – Orange County Register
Part two of a four-part series …
Q: Our Board of Directors has held several in camera meetings to discuss revisions to our governing documents. A lawyer was present at each of these meetings. Isn’t that in conflict with the Open Meeting Act since it doesn’t deal with litigation? Does the presence of a lawyer qualify these meetings as executive sessions? – HB, Carlsbad.
Q: If an HOA board of directors meets in executive session on unauthorized matters, should those discussions be kept confidential? – NS, Anaheim.
A: Directors have a fiduciary duty to protect the legally confidential information of the association and to keep it confidential, even with respect to their friends, neighbors and spouses. A director who does not protect this confidential information may be exposed to litigation and may not be covered by director and officers insurance.
However, if the discussion is really not confidential and not suitable for an executive session (for example, discussing the need to increase regular appraisals or a landscaping expense), then it would not have had to be kept confidential in the first place. However, check with the HOA lawyer first for confidentiality to avoid any mistakes.
HOA attorneys normally meet with boards behind closed doors as most of the topics covered are sensitive and regularly involve legal contributions, and typically connect to one or more of the permitted discussion topics (most often the risk of dispute). HOA attorneys should be vigilant to remind boards of directors when a matter is not eligible for a closed session.
Boards should be aware of and strictly adhere to the boundaries of closed sessions.
Q: In our little HOA, can board members correspond via email if they copy all other owners with the messages? – RT, San Diego
A: The Open Meeting Act of Section 4910 (a) of the Civil Code only allows deliberations by e-mail in an emergency. Article 4910 (b) (1) of the Civil Code prohibits deliberations by e-mail in all other circumstances. I understand the logic of just copying the rest of your little HOA over emails, which might save anyone from objecting to the email discussion. However, save your discussions for the board meeting.
Use emails only to deliver updates or information, and avoid opinions or responses to such update or information. I realize this is an example where the Open Meeting Act seems impractical, but it is the law we are all working under right now until someone starts to create reasonable alternatives. for very small HOAs like yours.
Q: Recently I saw comments from a director of another association who uses social media sites to comment on what is discussed in his association’s leadership sessions. What would you suggest that the board members do to try to get this director to follow the rules? –FB, Temecula.
A: A director who publicly discloses information, discussions or decisions of the executive session may violate his fiduciary duty to the HOA. Such breach of trust also impairs the HOA’s ability to deal with sensitive issues reserved for closed sessions. If I know that an administrator is relaying my confidential communications outside of the board, I cannot continue to copy that administrator to my privileged communications. Sometimes boards need to consider measures such as suspending this administrator from closed sessions until they reaffirm in writing their commitment to confidentiality.
Kelly G. Richardson CCAL is a partner at Richardson Ober DeNichilo LLP, a California law firm known for its advice to community associations. Send potential questions about the columns to [email protected]