One of the primary purposes of the Open Meeting Act is to ensure that an association’s members have the opportunity to attend board meetings and to observe the board’s decisionmaking process. However, there are certain items of business that involve confidential, privileged and/or sensitive information which should not be disclosed to the association’s members for a number of reasons. Civil Code Section 4935 therefore authorizes a board to meet privately in “executive session” to address specified matters, and further does not provide members with the right to attend such “executive session” meetings. (See “Board Meeting Attendance Rights.”)

Executive Session Matters
Civil Code Section 4935 specifies certain matters which may, and in some instances must, be discussed or acted upon by the board in executive session.  The following matters are those which may be discussed or acted upon by the board in executive session:

• Legal Matters. A board may adjourn to, or meet solely in, executive session “to consider litigation.” (Civ. Code § 4935(a).) This language is broad, but is generally interpreted to include matters involving pending litigation, as well as matters which have the potential to result in litigation, in order to preserve attorney-client privilege.
• Formation of Contracts. A board may adjourn to, or meet solely in, executive session to consider matters “relating to the formation of contracts with third parties.” (Civ. Code § 4935(a).) The Civil Code does not explicitly address whether matters “relating to the formation of contracts” allows for the board to actually vote on and execute contracts in executive session, though doing so is common practice. Once a contract has been executed by the board, the contract becomes an association record which may be inspected by members except in instances where the contract is “privileged under law.” (Civ. Code § 5200(a)(4).)
• Member Discipline. A board may adjourn to, or meet solely in, executive session for matters involving “member discipline.” (Civ. Code § 4935(a).) However, if a member who is the subject of the disciplinary matter requests that the board meet in executive session to discuss the matter, the board is required to comply with the member’s request and to allow the member to attend the executive session. (Civ. Code § 4935(b); See also “Notice & Hearing Requirements.”)
• Personnel Matters. A board may adjourn to, or meet solely in, executive session for “personnel matters.” (Civ. Code § 4935(a).) Personnel matters would include, but not be limited to, hiring, firing, raises, disciplinary issues, etc. that pertain to the association’s employees.
• Payment Plans. A board may adjourn to, or meet solely in, executive session “to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665.” (Civ. Code § 4935(a).) This involves discussing a payment plan with a delinquent member for the payment of the delinquent member’s assessment debt in accordance with Civil Code Section 5665. Notably, Civil Code Section 4935(b) requires the board to meet in executive session to discuss a payment plan—indicating that any such discussions must take place in executive session regardless of the word “may” contained in Civil Code Section 4935(a). (See also “Payment Plans.”)

The following matters are those which must be discussed or acted upon by the board in executive session:

• Member Discipline Upon Member’s Request. A board must adjourn to, or meet solely in, executive session “to discuss member discipline, if requested by the member who is the subject of the discussion,” and must further allow the member to attend the executive session. (Civ. Code § 4935(b).) Additionally, when the board is to meet “to consider or impose discipline upon a member,” (i.e., to levy a fine or a reimbursement assessment), the board must notify the member of the meeting (aka the “hearing”) and such notification must contain a statement that the member has a right to attend the meeting and address the board. (Civ. Code § 5855; See also “Notice & Hearing Requirements.”)
• Payment Plans. A board must adjourn to, or meet solely in, executive session “to discuss a payment plan pursuant to Section 5665.” (Civ. Code § 4935(c); See also “Payment Plans.”)
• Lien Foreclosure. A board must adjourn to, or meet solely in, executive session “to decide whether to foreclose on a lien pursuant to subdivision (b) of Section 5705.” (Civ. Code § 4935(d); See also “Decision to Initiate Foreclosure.”)

Notice & Agenda Requirements
Notice of executive session meetings must be provided to the association’s members and must include an agenda of items to be discussed or acted upon at the meeting. (Civ. Code § 4920.) The amount of notice varies depending upon whether the executive session is held with a scheduled open meeting, or whether the board is meeting “solely in executive session”:

• Executive Session with Open Meeting. If the executive session is held with a scheduled open meeting, notice of the executive session and its agenda is included in the open meeting’s notice and agenda that is provided to the members at least four (4) days prior to the meeting, unless the association’s governing documents require a longer period of notice. (Civ. Code § 4920; See also “Board Meeting Notice Requirements.”)
• Solely in Executive Session. If the board is to meet “solely in executive session” (i.e., between scheduled open meetings), the notice and agenda must be provided at least two (2) days prior to the meeting. (Civ. Code § 4920.) If a provision of the association’s governing documents requires a longer period of notice for meetings held solely in executive session, that provision does not apply “unless it specifically states that it applies” to meetings held solely in executive session. (Civ. Code § 4920(b)(3).)

Executive session matters involve confidential, privileged and/or sensitive information which are only “generally noted” in the minutes of the following open board meeting pursuant to Civil Code Section 4935(e).  Broad and generalized descriptions are typically used for executive session agenda items.

Executive Session Minutes; Items Noted In Open Meeting Minutes
Although there is no explicit legal requirement for the board to keep minutes of executive session meetings, provisions of the Corporations Code and Civil Code strongly indicate the existence of such a requirement. (See “Board Meeting Minutes.”) Notwithstanding that issue, “any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership.” (Civ. Code § 4935(e).)

No Member Attendance Rights
Except in instances involving a member’s disciplinary matter or payment plan (discussed above), the association’s members are not entitled to attend executive session meetings. (Civ. Code § 4925(a); See also “Board Meeting Attendance Rights.”)

Form of Meeting
Executive sessions may take place in any of the following forms:

• In Person. The directors may meet in person at a physical location, typically within a common area clubhouse or recreational facility. (Civ. Code § 4090(a).)
• Teleconference. The directors may meet via teleconference “where a sufficient number of directors to establish a quorum of the board, in different locations, are connected by electronic means, through audio or video, or both.” (Civ. Code § 4090(b).)
• Email (Prohibited). Email executive session meetings are prohibited except for emergency meetings. (Civ. Code § 4910(b).)

Calling Executive Session Meetings
Unless otherwise provided in the association’s articles or bylaws, executive session meetings “may be called by the chair of the board or the president or any vice president or the secretary or any two directors.” (Corp. Code § 7211(a)(1).)  

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