Condo Media - January 2019 - 16

Asked & Answered

Behind Closed Doors
Pros, Cons, and Reasons for
Holding Executive Sessions

I am a condominium homeowner and regularly attend meetings of the association's board.
Most of the discussions are conducted in the open, but the board sometimes goes into a closed
session that owners are not allowed to attend. Board members don't disclose what they
discuss or any decisions they have made. Aren't association boards required to hold open
meetings? I like our board members and think they generally do a good job. But when they
close the door, I have to wonder what they're trying to hide.

There are many good reasons for association boards to
hold open meetings, and your question highlights the
most important one: Closed meetings make owners
suspicious. They undermine the transparency owners
demand and deserve. However, there are some issues
that should not be discussed publicly: Personal information that might embarrass owners or violate their
right to privacy and legal advice from the association's
attorney, for example.
That's the philosophical rationale for open meetings
and executive sessions. Legal requirements, if they
exist, will be found in state law and/or an association's
governing documents, David Uitti, a partner in Mirrione, Shaughnessy & Uitti, LLC, explains.
While some condominium documents require
open meetings, Uitti notes, most do not. State laws
are inconsistent. The Massachusetts and Rhode Island
condominium statutes don't address open meetings or
executive sessions, while the New Hampshire, Maine,
and Vermont statutes address both.
■ The New Hampshire statute requires associations
to hold meetings open to owners "at least quarterly."
■ The Maine statute specifies "unit owners have the
right to attend meetings of the executive board,
subject to reasonable rules established by the
executive board."
■ The Vermont statute requires meetings be open
to unit owners "except during executive sessions."
All three define the same limited number of
purposes for which executive sessions can be held:
■ To consult with the association's attorney
■ To discuss existing or potential litigation or mediation, arbitration, or administrative proceedings.
■ To discuss labor or personnel matters.

CONDOMEDIA January 2019

■ To discuss contracts, leases, and other commercial
transactions for goods or services.
The New Hampshire statute specifically permits executive sessions to discuss delinquencies and information that would violate privacy rights. The other statutes
don't reference delinquencies but do allow closed sessions "to prevent public knowledge of the matter to be
discussed if the executive board determines that public
knowledge would violate the privacy of any person."
"These criteria for executive sessions make sense,"
Uitti says, as a guide for associations if neither their
documents nor applicable state law addresses the issue.
Absent statutory authority, he thinks the arguments for
discussing litigation and legal advice in closed session
are the clearest and easiest to defend.
Personal privacy and maintaining the confidentiality
of contract discussions are also more vulnerable to
challenge, he says.
Uitti advises boards to use executive sessions sparingly and to explain to owners the reason for them.
Boards should also report any decisions made in
closed sessions, Uitti suggests, which they can do, he
says, without disclosing information they are trying to
protect. For example, he says, "You might say that the
board discussed a personal matter involving an owner,"
without describing the matter or identifying the owner.
State law, the association's governing documents, and
"common sense," Uitti suggests, are the best guides for
determining whether executive sessions are necessary.
While owners have a legitimate personal interest in
knowing what is going on in their community, they also
share with other owners, and with the board, a collective interest in protecting the association.
And that collective interest will argue in favor of conducting some board discussions behind closed doors.

Condo Media - January 2019

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