Condo talk: Executive session minutes and board workshops

Q. Under what circumstances may the board of a condominium or common interest community association meet in executive (closed) session?

A. In general, meetings of the board must be open to any unit owner. Owners have to be permitted to attend board meetings, but owners do not necessarily have a right to participate — after all, it’s a meeting of the board. There are nonetheless three exceptions that permit portions of a board meeting to be held outside of the presence of unit owners. This portion of a board meeting is commonly referred to as an “executive session” or a “closed session.”

Portions of a board meeting can be conducted in executive session (1) to discuss litigation when an action against or on behalf of the association has been filed and is pending in a court or administrative tribunal, or when the board finds that such an action is probable or imminent, (2) to consider information regarding appointment, employment or dismissal of an employee, or (3) to discuss violations of rules and regulations of the association or a unit owner’s unpaid share of common expenses.

However, and this is often overlooked, any actual vote on matters discussed in executive session must be taken at a meeting or portion of a meeting open to any unit owner. So, for example, a board may conduct an owner’s rules violation hearing in executive session; however, the vote on whether a violation occurred and the fine to be levied must be voted on in open session of a board meeting.

Let’s look at how this plays out in a board meeting. First, at a duly noticed and called board meeting, the meeting is called to order and the board conducts its regular business, if any, at the open portion of the board meeting. When it is time to go into executive session, a motion is made to go into executive session, seconded, and voted on by the board.

Owners are then excused from the meeting and the board then discusses the matter entitled to be discussed in executive session. When the executive session discussion is concluded, and it is time to go back into open session, a motion is made to come out of executive session, seconded, and voted on by the board. Owners (who may be hanging around outside of the meeting room) are then invited back into the meeting room.

The board may then vote on the matter that was the subject of the executive session. Occasionally, the only item on the agenda for a board meeting is a matter to be discussed in executive session. The forgoing procedure must nonetheless be followed, since the vote on the matter must take place at an open meeting of the board.

Q. What should minutes of a board meeting state concerning the matters discussed in executive session?

A. Very little. Minutes of a board meeting should reflect the motions and votes to go in and out of executive session. However, the discussion or any details of what occurred in executive session should not be described in the minutes. Any motion and vote concerning a matter that was discussed in executive session must be made in open session and should, of course, be included in the minutes. Such motions may have to be carefully worded to avoid disclosure of, for example, privileged litigation strategy.

Q. Can board members assemble outside the presence of unit owners to discuss association matters?

A. Yes, and these gatherings are commonly referred to as “workshops.” Workshops are usually held as planning sessions for a board. The open meetings provisions of the statutes that govern associations apply if the board is “conducting board business.” Conducting board business is generally viewed as voting on matters. So, the board cannot vote on any matter at such workshops, as votes can only be taken at a board meeting.

As a note of caution, workshops should be used carefully as planning sessions, and not as a substitute for discussion at board meetings. While lawful, a board needs to nonetheless be mindful of the political ramifications of holding such workshops. Unfortunately, it is easy for owners to mischaracterize any closed assembly of the board, and to inaccurately assume that something nefarious is taking place behind closed doors.

Ÿ David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.