Condominium boards regularly discuss budgets, repairs, rule changes and other issues that affect everyone in a particular community.
Most of the time, those meetings can and should be public. Sometimes, however, a sensitive matter needs to be addressed, and the board needs to be able to navigate the issue with some privacy. Such a closed meeting by a condominium board is called an “executive session.”
When is an executive session permitted?
A board cannot move behind closed doors simply because a discussion may be uncomfortable or because board members would prefer privacy. Under the New Hampshire Condominium Act, a board or association committee may use an executive session to:
- Consult with the association’s attorney
- Discuss existing or potential litigation
- Discuss mediation, arbitration or administrative proceedings
- Address labor or personnel matters
- Discuss certain contracts, leases or commercial transactions being negotiated
A private discussion involving a contract or commercial transaction may be appropriate when premature disclosure would put the association at a disadvantage. Privacy concerns, particularly when litigation, mediation or other forms of dispute resolution processes are involved.
For example, suppose a condo owner repeatedly violates a parking rule and threatens to sue when the board imposes a fine. The board cannot necessarily enter executive session merely because the owner has been problematic. It may, however, meet privately to consult its attorney and discuss the litigation threat and decide on a strategy.
The board cannot make final decisions in private
An executive session must occur during a regular or special meeting of the board or committee. It is not supposed to be a separate, secret meeting where association business is decided away from the eyes of the condo owners and other interested parties.
In addition, while the board may discuss a qualifying issue during executive session, it cannot take a final vote or action. If a vote or action is necessary, the board must return to the regular – open – meeting before making its decision.
An executive session is also different from a board meeting that is closed but recorded and later made available to unit owners. The rules governing these meetings are distinct, so boards should understand which procedure they are using.
A condominium association should have clear procedures for entering executive sessions and documenting any action taken afterward. Legal guidance can help board members protect sensitive information and situations, while still adhering to the law and retaining the trust of those whom they govern.