A properly noticed meeting – open or closed – enables boards to properly manage the business items your management company or association volunteers are unable to complete without proper consent.
Association meetings are often the most visible aspect of administering an HOA. Most meetings are open to all members, but the board can meet without the members in a few instances. This week, we will answer a few commonly asked questions regarding the difference between open and closed meetings.
Knowing how and when to call an open or closed meeting will help your board avoid potential legal complications.
Let’s look at some of the most commonly asked questions about open and closed meetings.
What are open meetings?
Open meetings are meetings that are properly noticed and open for the members to attend.
Depending on the state you live in, the members may or may not have the right to speak at an open meeting, but they should always be given the opportunity to attend.
What should be discussed during an open meeting?
While HOA open meeting requirements vary by state, many states have specific items (usually having to do with financial matters) that can only be discussed and voted on between board members in an open meeting.
Items like budget approval, officer elections, approving capital improvements, and assessment changes are all things that many states will insist must be discussed and voted on exclusively in an open meeting, so that the members have a reasonable opportunity to learn what’s going on in the governance of their community.
What Are Regular Open Meetings?
There are two types of open meetings: regular and special.
A regular board meeting is what you typically think of when you think of an open meeting. It is held on a regular basis, like monthly or quarterly, and is typically set by the bylaws or the board (state statute may dictate the frequency of regular meetings, but meeting frequency is left up to the HOA in many states).
The purpose of regular meetings is to act on the typical business and operation of the association.
What Are Special Open Meetings?
Occasionally, you may need to hold a special meeting to address pressing, but non-emergency, business.
For example, what if you’re in the middle of pool season, with two months to go until your next regularly scheduled meeting, and your pool vendor says they’re going out of business immediately? In this case, you would need to find someone to service the pool immediately, and you’d likely need to have a meeting to approve the decision.
Special meetings are exactly like regular meetings, though, in that they must be open to the members and advanced notice is required.
For many states, the HOA’s governing documents will dictate what authority the board has to call a special meeting.
How strict should our board be about hosting open meetings?
It depends on what requirements your state legislature has laid out for HOAs regarding open meetings.
Always check with a qualified professional if you have any questions or concerns about the legality of your actions regarding your state’s open meeting laws.
As a general rule, boards should be careful of what they discuss amongst themselves outside of regularly scheduled meetings. Some states, like Arizona, have very strict state statutes on what constitutes as a board meeting (A.R.S. § 33-1804(E)(4)).
What do we do if we realize we’re in violation of state law regarding open meetings?
This answer is partly dependent on what part of the law has been broken.
If decisions were made outside an open meeting that your state legislature would require be made in an open meeting, then place all items previously discussed on the agenda of your next board meeting. That way, you can re-discuss them and then re-ratify your decision.
Are there any instances where a board doesn’t have to discuss certain items in an open meeting?
Some states exempt communities in development from having open meetings, except for very specific items that may come up (for example, the election of a homeowner to the Board of Directors).
State statute also often allows for exceptions to be made in emergency situations, i.e., if a main water line in the community breaks, then the board would be allowed to take immediate action outside of a properly noticed board meeting.
So far, we’ve discussed open meetings and what types of meetings constitute an open meeting. But what does a board do if they need to discuss something that’s particularly sensitive in nature, but isn’t really an emergency? You’d meet in a closed session!
What is a closed meeting?
A closed session (sometimes called an executive meeting or session) is closed to members and includes only the board members and those that the board has invited (like a homeowner facing enforcement action, an employee, or an attorney).
Some states allow closed meetings to be their own meeting, separate and distinct from a regular or special meeting. Some states dictate that a closed session must be a part of a regular or special meeting.
So, what issues can be discussed in a closed meeting?
State statute often dictates that there are several items that a board is allowed to go into closed session to cover, though some states have very strict closed meeting requirements.
Florida, for example, only allows HOA boards to go into closed session if they’re getting advice from their attorney about pending litigation and the matters under discussion would fall under client-attorney privilege (720.303.2a).
Items will vary from state to state, but typically there will be allowances made for issues related to enforcement actions, personal matters (like an employee’s job performance), and legal advice.
Knowing the difference between open and closed meetings, and what can be discussed in each, will go a long way in helping you in your administrative tasks and helping you avoid any unfortunate legal problems.
We hope organizing these answers into one, easy-to-find place makes understanding the ins and outs of meetings straightforward, fast, and easy. If you want to know more about this topic, sign up for a free trial today.