As we all know, Colorado requires all board meetings to be open to attendance by owners within the community, unless the board goes into executive session. We get a lot of questions from boards and managers about whether specific topics are appropriate for executive session. Colorado law (C.R.S. 38-33.3-308(4)) allows boards to go into executive (or closed door session) and prohibit owner attendance for the following reasons, and the following reasons only:
- 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.
- Review of or discussion relating to any written or oral communication from legal counsel.
Some issues fit easily into one of the above topics. For example, if an association is renegotiating its management contract or considering terminating it, then the board can go into executive session. Likewise, if the association has employees and the board is considering discipline, pay raises, or similar issues, the board can discuss those issues in an executive session. But what if the board is considering alternatives for its landscaping contract or some other service provider? In such a case, the board cannot go into executive session, as this does not fit into any of the above categories.
Another common question is whether a board can go into executive session to discuss delinquencies. The answer is generally no. One exception would be if the board was discussing the delinquencies with the association’s attorney present at the meeting. Similarly, if the board is discussing recommendations from the association’s attorney in relation a specific case, the board can go into executive session to discuss that recommendation or communication from the attorney. Also, if the board has sensitive information about a particular delinquent owner, such as the owner is delinquent because of personal or health issues, the nature of which would be an invasion of the owner’s privacy if divulged, then the board could go into executive session.
The bottom line is that boards should strive to do as much business as possible in an open meeting, and should use executive sessions only when absolutely necessary. If there is any question about whether a particular subject is a proper topic for an executive session, the board should consult its attorney to ensure it will not be running afoul of the law.