HOA boards can often wrestle with an executive session when it is appropriate to go into one. There are certainly times when it is appropriate for board members to meet in private to discuss sensitive matters that should not be disclosed at public board meetings. However, boards can easily lose the trust of their community, or even be violating the law, if they move too many matters out of the public eye.
When Is an Executive Session Appropriate?
The first thing to determine when considering moving into executive session is to know what the state’s law allows. Most states have some provision that allows for the board to meet and discuss matters privately under specific circumstances. However, some states (like Florida) completely disallow community matters being moved from public view, except in cases of attorney-client privilege.
While the rules vary from state to state, the key detail in determining whether something can be taken up in executive session is whether or not it deals with sensitive information. The most common sensitive situations include discussing current or upcoming litigation, pending contracts, or other matters that are legally confidential.
There may also be times when it may be appropriate to call an executive session when discussing sensitive or private matters. If a board needs to take action on complaints of harassment, or personal conflict, where public discussion would be inappropriate or adversarial, the board should use whatever power it has to move the meeting out of the public view.
Keeping Executive Sessions Above Board
Many states require boards to announce their intent to meet in executive session and state exactly why they are taking up the matter privately. Even if the state laws allow one to get around this restriction, it is good policy for a board to make it clear exactly why it needs to go into private discussions.
Executive session can be a useful tool, but it can also cause a rift between the board and community members if it appears that the board is being too secretive. If board meetings are constantly being interrupted by executives running off behind closed doors whenever a controversial matter comes up, it can be a problem. That board may not be living up to its responsibilities of fair governance, and risks creating the impression it’s abusing its power and ignoring the community that it is meant to serve.
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