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May 18, 2007
All About Minutes - What Goes in Them? Everything? Nothing?
I get many inquiries about minutes. So I decided to put the most recent questions into one blog.
Question: "Our BOD puts copies of the monthly minutes on our doorsteps. Many owners do not live onsite. For the "Financial Report" section, the only reference is that the motion to approve the financial report was approved. There is no information about the financials. What rights do we have? Can anyone require them to put at least that minimal information in the minutes?"
Answer: Generally what goes in the minutes are statements about whether there was a quorum, who was present, statements of what reports were given, motions and action on the motions. There certainly are associations that list financial information in the minutes, or attach reports, but there are also those that do not. There is no specific law that says what must go in the minutes. Occasionally governing documents have some specifics (would usually be in the Bylaws). However, in regard to the question, the best opportunity to get the Board to include financial reports with the minutes is through voluntary compliance. If that does not work, the owners who cannot come to meetings and get the information by being present can request copies of financial reports that have been generated, whether interim or annual. The association can charge for the copies.
Question: "The Board recently approved a request of an owner to remove [a fireplace/deck/etc.] that was declared unsafe. There may be other similar improvements in the development that are unsafe. The request was an architectural request and the Board in our association makes the decisions on architectural applications. The action did not appear in the minutes. Isn't the Board required to list all actions that are taken in the minutes of the meetings?"
Answer: I would say generally, the answer is yes. However, there are times when the Board takes action in executive session and although those actions should be logged in the executive session minutes, those minutes are not open to review or copying by the members. And there are associations that do not list architectural decisions in the board meeting minutes (although they should if the Board is making the decisions). For more, see the next question.
Question: "About executive session minutes. New board members need to know what the prior board's actions were with respect to a legal matter. Must executive actions be recorded in special minutes and if so, are they privileged as to new board members? I would think that minutes of executive sessions should be kept and that successor board members would have access to them in their role as current board members. Your thoughts?"
It is my belief that in California anyway, Boards should make sure that all action items are noted either in open meeting minutes, or, where the meeting is an executive session (as allowed by law), in the executive session minutes. However, there seems to be some disagreement among attorneys about this. Some recommend not even taking executive session minutes because if they should become discoverable in a court case, the decisions or actions could lead to liability that does not otherwise pertain or the "discovery" of such minutes might hurt the association's case, especially if there were notations constituting harmful admissions of some kind. Some feel that all actions must be noted, and that everyone present must be disclosed, and that the action items must all be listed in th open meeting minutes of the next open board meeting. That last item, I do not agree with. California law requires that if the Board meets in executive session at times that are not the same evening or day as the open meeting, that at the next open meeting, the Board must note that an executive session was held, and the purpose must be stated. This makes sense because that would let the owners know whether the purpose was legitimate (a personnel matter, a contract negotiation matter, that it was about litigation, a disciplinary matter, or an attorney-client privileged matter).
As for any director's right to review of executive session minutes from prior boards, California law (Corporations Code) allows board members access to all association records. However, case law suggests that there are times when this unfettered access can be limited. In a California case, a board member was denied access to proxies. He wanted to see who voted for him, but the court decided that the director was elected and so there was no need to view the proxies. So, it is conceivable that a board member may be denied access to certain association records such as executive session minutes. One such scenario might be if the board member is suspected of disclosing association confidences.
Hope this helps!
Posted by Beth Grimm at May 18, 2007 7:36 PM