The Open Meetings statute (C.R.S § 38-33.3-308) became law in July, 1995. One need only attend a board meeting or speak with a manager to observe the many interpretations of the statute. The following are intended to address and dispel many of the common myths surrounding the Open Meetings statute.
Myth No. 1: The Open Meetings statute only applies to associations formed after July 1, 1992.
Fact: The statute applies to all associations subject to CCIOA regardless of when they were formed. (See Sections 117 and 115 of CCIOA).
Myth No. 2: The Open Meetings statute requires boards to give notice to homeowners of all board meetings.
Fact: While the statute requires all regular and special board meetings be open to attendance by all members, the statute is silent on notice requirements for board meetings. Notice requirements are typically found in the association’s bylaws.
Myth No. 3: The Open Meetings statute prohibits boards from making any decisions in executive session.
Fact: The statute only prohibits boards from adopting rules or regulations in executive session.
Myth No. 4: The Open Meetings statute only applies to regular board meetings.
Fact: The statute applies to all board meetings, whether regular or special.
Myth No. 5: The Open Meetings statute only applies to meetings of the board of directors.
Fact: The statute also applies to committee meetings (e.g., Architectural Control Committee, Nominating Committee, Budget Committee, etc.), as well as board meetings.
Myth No. 6: The Open Meetings statute requires minutes be kept of an executive session.
Fact: The statute only requires minutes be kept indicating an executive session was held and the general subject matter of the executive session.
Myth No. 7: The Open Meetings statute applies to board “working sessions” where no action or vote is taken.
Fact: The statute only applies to meetings. The term “meetings” is not defined in the statute and therefore does not necessarily include “working sessions.”
Myth No. 8: The Open Meetings statute restricts attendance at executive or closed-door sessions to just board members.
Fact: The statute also allows attendance of such other persons as requested by the board (e.g., attorney, committee members, employee, homeowner, etc.)
Myth No. 9: The Open Meetings statute authorizes the board to go into executive session without stating a reason.
Fact: The statute requires that the general matter to be discussed in executive session be announced prior to the board (or committee) going into executive session.
Myth No. 10: The Open Meetings statute allows boards to go into executive session for any stated reason.
Fact: The statute limits executive sessions to discussions of the following:
- 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 proceedings 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; and
- Review of or discussion relating to any written or oral communication from legal counsel.
Myth No. 11: The Open Meetings statute does not require boards to give owners a copy of the agenda for the meeting.
Fact: The statute requires agendas be made reasonably available to members or their representative and encourages associations to provide agendas in electronic form, by posting on a website or otherwise, in addition to printed form.
Myth No. 12: The Open Meetings statute requires an agenda for every meeting.
Fact: There is no requirement an agenda be prepared. However, if one is prepared, the board agenda reasonable available to all members or their representatives. Boards should ensure extra agendas are available at each meeting.
Myth No. 13: Because members are allowed to speak prior to the board taking formal action on an item under discussion, a board of directors may no longer enter into an executive session and take action during the executive session.
Fact: The right of a member to speak prior to any action being taken by the board of directors only applies to meetings of the board open to members. Therefore, a board of directors may still enter into an executive session and take appropriate action, with the exception of adopting rules or regulations.