The Colorado Common Interest Ownership Act (“CCIOA”) requires board meetings be open to attendance by owners in the community unless the board goes into executive session. All owners are therefore allowed to attend any portion of board meetings except when they are excluded from a properly called executive session.
CCIOA authorizes boards to go into executive sessions and exclude owners only for the following reasons:
- Matters pertaining to employees of the association or the managing agent’s contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
- Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceeding or matters that are privileged or confidential between attorney and client;
- Investigative proceedings concerning possible or actual criminal misconduct;
- Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
- Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy;
- Review of or discussion relating to any written or oral communication from legal counsel.
Naturally, this begs the question: may and should boards discuss owner delinquencies in open meetings?
Generally speaking, such discussions are not within the purview of the executive session and boards should not go into executive sessions for the review or discussion of delinquencies.
There are some exceptions however. One exception would be if the board is going to discuss delinquencies while the association’s attorney is present at the meeting. Likewise, if the board wishes to discuss legal recommendations with respect to a specific case, how to proceed in litigation, or a specific legal strategy on a matter, the board may go into executive session to discuss legal recommendations received the association’s attorney. Additionally, if the board has sensitive information relating to a particular delinquent account, such as familial circumstances or health issues, the board may go into executive session to discuss the delinquency so as not to violate such owner’s privacy. Finally, if a delinquent owner specifically requests to discuss his/her situation in private with the board, executive session should be utilized to again protect such owner’s privacy.
The purpose of an execute session is to balance the need of the association to keep some matters private with the need of homeowners for transparency of the board. To protect against embarrassment when discussing delinquencies in the public portion of a meeting, it is often recommended that boards refrain from identifying the delinquent owners by name or address. Instead, each account may be identified with a corresponding file number or letter and identified in that manner.
The bottom line is that boards should strive to do as much business as possible in an open meeting and use a properly called executive session only when absolutely necessary. If there is any question about whether or not a particular account or topic would be properly discussed in executive session, the board should consult the association attorney for guidance.