The Executive Session is one of the most commonly misunderstood—and least implemented—tools in the HOA toolbox. Many boards fail to use it nearly as much as they should—and while using it too much can be a mistake (and a violation of HOA governance), it can be most helpful to develop a basic understanding of what Executive Session is, and when it can be utilized.
To begin with, what is Executive Session, exactly? Executive Session is something that is generally provided by an HOA board’s governing documents, allowing the board to take up information that is either privileged or private. While members of the association have every right to attend regular meetings, they are not allowed to attend Executive Sessions, unless they are part of the proceedings under way.
Of course, it is easy to see how a board could abuse Executive Session privileges, which is why most HOA governing documents will spell out exactly when Executive Session is allowable. It is smart to check your own governing documents to verify this, but usually, the occasions for Executive Session include:
- The discussion of legal matters, including pending litigation and settlement strategies.
- The review and discussion of contracts with third party vendors.
- Any disciplinary actions taken against association members. (Indeed, this must be done in Executive Session; handling it publically is a huge mistake.)
- The discussion of personnel issues, including the hiring, firing, or pay increases of any HOA employees.
- The discussion of any delinquent payments, or of potential foreclosures.
Again, it is vital to check with your HOA statutes to ensure that you understand when Executive Session is and is not okay; it is just as important to know who is allowed to attend these meetings. The list of permissible attendees includes Board members, managers, recording personnel, attorneys (when needed), association members subject to action, witnesses of those actions, and anyone else who is expressly invited by the Board.
Executive Session is not something to use uncaringly or thoughtlessly, but there will be times when it proves most helpful.