When can a Board Hold a Closed Meeting?
Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: Our homeowners association (HOA) board called a private board meeting for personnel issues. The meeting was held to discuss an email a director sent by mistake to the general manager. The email had some satirical comments about a board member’s decision. The board voted to ask the director to resign for ethics reasons and if they did not resign to remove them from their officer position. Is this a meeting that can be legally closed? They also had private board meetings which were called to discuss a vendor contract but had it without an attorney present. The way I read the Sunshine laws, that is also not a legal meeting. When I asked the board president about the meetings, he said their attorney said they were legal because they were contract negotiations. Your opinion? C.C., Naples
A: Thank you for your questions. The law applicable to the HOA is Section 720.303, Florida Statutes which provides: “Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors.” The law for condominiums is identical.
A meeting of the board to discuss the actions or communications of a director or officer as you have described is not a personnel matter in my opinion. An officer or director of the association is not the association’s personnel. If the meeting was about comments made about the general manager, then it could be considered a personnel matter but that would mean it involved something about the general manager who is the association’s employee, i.e. personnel. You indicated the purpose of the meeting was to discuss comments made to the GM about the board not about the GM. This does not qualify in my opinion as a personnel matter that would allow the meeting to be closed to members.
Meetings to discuss negotiations about the vendor contract when the association’s legal counsel was not present is also not a meeting that can be closed to the members. Even if the association attorney was present at the meeting it likely should not have been closed because the purpose of the meeting was not to discuss proposed or pending litigation, as required by the law.
Boards often want to hold closed meetings to discuss matters that they otherwise do not want to publicize, sometimes for good reason such as negotiation of contract terms when there are several service bidders, but neither of the two exceptions apply for this purpose.