By Laurie S. Poole, Esq. (originally published in Fall 2002)

California Civil Code Section 1363.05, known as the “Common Interest Development Open Meeting Act,” addresses the issue of executive sessions and minutes of those meetings. Under Civil Code Section 1363.05(b), all board meetings are open to the homeowners except when the board adjourns into “executive session.” Under that same subsection, “executive session” adjournments are used to “consider litigation, matters relating to the formation of contracts with third parties, member discipline or personnel matters.”

Currently, Civil Code Section 1363.05(c) requires that after an executive session, any matter discussed shall be “generally noted in the minutes of the board of directors.” However, Assembly Bill 2417, recently approved by the legislature, amends this subsection of the Open Meeting Act. Effective January 1, 2003, Civil Code Section 1363.05(c) will require that matters discussed in an executive session be generally noted “in the minutes of the immediately following meeting open to the entire membership.”

According to the legislative history of this bill, this amendment was proposed because homeowners were concerned that they were not being adequately informed about executive sessions and the actions taken in those meetings by the board. This amendment to Civil Code Section 1363.05(c) makes it clear that the minutes of the next regular board meeting must contain a general notation of the matters that were discussed in the executive session. Thus, an association’s regular board meeting minutes must now generally disclose the executive session matters discussed in any immediately prior executive session. This will enable all homeowners to be aware of items discussed in executive session.

Because executive session matters can contain confidential attorney-client communications as well as private matters (especially concerning member discipline), it is important that caution be exercised when noting these matters in the next meeting’s minutes. For instance, when dealing with member discipline, the minutes should not refer to the person by name, but rather by an account number that is not the member’s address. For example, an appropriate executive session notation may read: “The board met in executive session to consider the delinquent assessments on account number 384.”

When dealing with litigation matters that involve communication with the association’s attorney, the attorney should be consulted regarding how to word the executive session notations. Also, when dealing with contract negotiations and bids, the name of the proposed contractor should never be put in the minutes, nor should the amount of the proposed bid.

If your association requires assistance preparing board minutes, please do not hesitate to contact our office.