Executive Sessions

Frequently homeowner association and other nonprofit board of directors announce they are going into “executive session” and close the meeting to only the board. The North Carolina Planned Community Act provides that meetings of the organization are governed by Robert’s Rules of Order, unless the bylaws provide for a different manual of policy and procedure. According to Roberts, a closed or executive session is usually a meeting of the corporation that is closed to the public (as opposed to a member homeowner). Most board meetings of an HOA are already an executive session, and those meetings are closed to the public.

The Planned Community Act requires that an executive board meeting provide opportunities for members of the association to attend the board meetings, subject to reasonable restrictions on the number of members who speak on the issue and time restrictions. What follows is that the board can restrict other portions of the board meeting and close those portions not only to the public, but also to members. This is typically what a board is doing when it announces it is going into “executive session.” Usually the only time a board will close a meeting to the member homeowners would when sensitive discussions are being held such as unpaid assessments or other debts to protect the HOA from claims under the Fair Debt Collection Act. Also discussions regarding employee performance are typically done in these closed sessions to protect against any possible EEOC complaint.

Even though such a portion of a meeting may be closed, members are entitled to be provided upon request any minutes of such a closed session at a reasonable time and location. Any action (as opposed to discussion) taken by the board, even actions taken on unpaid assessments and employee decisions, should be reflected in the minutes. The member will be under the duty not to disclose those records to the public. A judge can place reasonable restrictions on the production of any corporate records and the minutes.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.