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Proper Use of Executive Sessions During Open Board Meetings


Jennifer Hill


The Homeowners’ Associations Act (RCW 64.38) requires all board meetings to be open for owners to attend and observe. Although the Condominium Act and Horizontal Property Regimes Act do not contain similar open meeting requirements, your association’s governing documents may require it and it is a good practice to provide transparency as to association business. If you are holding open meetings observed by your members, there may be certain topics that you want to discuss in closed, executive session. You should carefully follow the requirements regarding closed session, or the actions taken or decisions made in closed session will not be valid or enforceable.


Executive Session Discussion Topics: Unless your governing documents state otherwise, RCW 64.38.035 states exactly what topics or purposes support going into a closed session.


• Personnel matters


• Consulting with or considering communications from legal counsel


• Discussing “likely” or pending litigation


• Matters involving possible violations of the governing documents


• Matters involving possible liability of an owner to the association (assessment collections)


A closed session of the board can only address something within these categories. The closed session cannot digress to something other than the exact purpose given for having the closed session, even if another desired topic fits within the statutory purposes for a closed session. In other words, if the motion to go into closed session is stated for the purpose of discussing a personnel issue, the board cannot decide to also discuss a covenant violation and have a valid, enforceable decision about it. The purpose used for the motion to go into closed session is the only matter that can be dealt with in the closed session.


Procedure for Convening Executive Session: 1. During open board meeting, a director makes a motion to go into a closed session for the purpose(s) of ____________ [state valid purpose(s) from the list above]


• The motion is seconded by another board member.


2. A majority vote of directors approves going into closed session for the stated purpose(s);


The requirement to “reasonably identify” what is being approved in open session (based on the closed session) is important to keep in mind, but this does not mean you have to divulge details which should remain confidential. For example, after closed session discussions and decisions about the association’s attorneys’ advice to accept a settlement offer during litigation, the board does not have to give details in the open session vote. Rather, the open session vote could be based upon a motion to approve and implement the association’s attorney’s recommendation on the “Smith” case.


If the board convenes in closed executive session for discussion but no decision is made or action taken, then upon reconvening in open session, the board simply announces that no decisions were made or actions taken in closed session.


The board is not required to give any report to the members about what was said in the closed session and does not have to put anything in the meeting minutes either. Doing so would counter the purpose of the closed session, i.e., to have frank, off the record, discussions about sensitive issues before putting the resulting decision before the members. Only decisions made or action taken must be documented in the board meeting minutes after the closed session is completed.


Closed sessions of boards play an important role in conducting association business on sensitive issues. If used correctly, the directors’ actions and decisions in closed session will be valid, enforceable, and free from successful challenges by owners.


3. Board convenes in closed executive session in a private area out of earshot of association members;


4. Board conducts its closed session discussions in private and makes decision(s) on the stated topic(s);


5. Board “reconvenes” its open meeting session;


6. In open session, board must vote on whatever motion, action or decision was adopted, passed or agreed to in closed session


• a director makes a motion to approve ___________ [“reasonably identify” what has been decided;


• a director seconds the motion;


• upon call for vote, board votes and, upon approval from majority of the board, it becomes validly passed and adopted.


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