Does the Right in an HOA to Meet in Executive Session include Interviewing Board Candidates?
Here is a question I received about “interviewing” candidates for the board. This is a new one.
“Can a HOA Board meet in closed session to interview candidates for appointment to the Board under the “personnel” exception? Does the term “personnel” include Directors and potential Directors being considered for appointment to the Board itself. Personnel implies employees, in the case of a HOA, perhaps the unelected homeowners in their unelected capacity.”
The reader quoted the portion of the Davis Stirling Act that deals with executive session purposes:
(a) The board may adjourn to, or meet solely in, executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or to meet with a member, upon the member’s request, regarding the member’s payment of assessments, as specified in Section 5665.”
My answer is this. I do believe that the Board can deal with issues relating to a director in executive session under the “personnel” purpose. Example: director is suspected of disclosing confidential information and board wants to meet with the director to discuss this. Such a meeting might be characterized as executive session either from the “member discipline” or “personnel matters” perspective depending on what the board wants to accomplish in the meeting with the director.
However, interviewing candidates for the Board even when related to appointment to fill a vacancy should in my opinion NOT be done in executive session. The owners have a right to hear what candidates for the board have to say about their qualifications. In fact, under the elections laws for HOAs in California a board is not to utilize any association resources to the advantage of any candidate over another. Utilizing this law for guidance, if the board interviews candidates in confidence, it can lead to bias, and I think that is a problem. At the very least it seems it would lead to trust issues. Why does the board need to meet in executive session about this? That is what owners may want to know. Why allow those questions to arise?
I know that boards do choose favorites to fill vacant board spots, often to keep a majority block in place or prevent a minority candidate from having a chance to vie for an open spot. Do I think this is a good practice? I cannot say there would never be a good reason to do it, because I never say never. But I do not believe it is a good practice. It flies in the face of transparency.
I have been a condo-homeowners association attorney for more than 24 years. I like helping people get their arms around their homeowner association problems and find a solution. A balanced attitude can go further to resolve issues than just about anything else.
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