Executive Session Agendas – Be Ready for Anything!

This article originally appeared on the Hughes Gill Cochrane Tinetti Website.

Executive Session Meeting Requirements and Best Practices

It’s 10 a.m. on the day of the monthly open meeting of the board. The agenda has been set, notice has been posted, and board packets have been distributed. Suddenly, a homeowner sends an email demanding reimbursement for damage caused by leaks, claiming they have hired a lawyer, and threatening legal action against the association. Management promptly forwards the email to the association’s legal counsel, who is available to meet with the board in executive session that evening.

At first glance, the timing seems ideal. However, the meeting scheduled for that evening was noticed only as an open board meeting. Counsel advises that it is too late to properly notice an executive session meeting. As a result, the board, management, and counsel must schedule another meeting later in the week to discuss the homeowner’s threatened litigation. The directors are understandably frustrated by the need for an additional meeting. Fortunately, there is a practical way to avoid this scenario and allow boards to efficiently address unexpected executive session matters.

Executive Session Topics

In general, boards are required to conduct association business in open board meetings. However, California law recognizes that certain matters are confidential and should not be discussed openly before the membership.

Pursuant to Civil Code section 4935, boards may meet in executive session to consider:

• Litigation

• Formation of contracts

• Member discipline

• Personnel matters

• Collection matters, including payment plans and foreclosure

Boards may also meet in executive session to discuss matters that are confidential under other laws, including:

• Attorney-client privileged communications (Evidence Code section 954)

• Disability-related reasonable accommodation requests (Cal. Code Regs. Tit. 2, section 12176(e)(1))

Boards must carefully protect the confidentiality of these matters to preserve members’ privacy rights and safeguard the association’s legal interests.

Boards should also avoid interpreting executive session topics too narrowly. A broader and more cautious approach is generally advisable. For example, if a homeowner:

• Requests reimbursement for property damage

• Threatens to hire an attorney

• Indicates possible legal action

• Disputes election results

Those matters should generally be discussed in executive session under the category of litigation, even if no lawsuit has yet been filed.

Discussing such matters in open session could potentially compromise the association’s position in future legal proceedings.

Agendas Are Required

Under Civil Code section 4920(d), notices for both open and executive session board meetings must include an agenda.

Additionally, pursuant to Civil Code section 4930, boards generally may not discuss or act on matters at a non-emergency meeting unless those matters were included on the agenda distributed with the meeting notice, subject to limited emergency exceptions.

The Davis-Stirling Act does not specify how detailed executive session agendas must be. However, because executive session matters are confidential, agendas should remain broad and general in nature.

For example, an executive session agenda item may simply state:

“Litigation” rather than describing the specific legal dispute involved.

While limited non-confidential descriptors may be acceptable, boards should err on the side of caution. Overly detailed agenda descriptions can inadvertently compromise confidentiality.

Add a Recurring Executive Session Statement to Open Meeting Agendas

Boards may benefit from including the following recurring statement in every notice of open board meetings:

“The Board may adjourn to executive session to consider: litigation; formation of contracts; member discipline; personnel matters; and collection matters, including payment plans and foreclosure.”

Including this language in every open meeting notice allows the board to pivot efficiently when unexpected executive session matters arise.

In the example described earlier, had this statement been included in the agenda, the board could have adjourned to executive session that same evening to consult with legal counsel regarding the homeowner’s threatened litigation.

This approach helps boards avoid unnecessary delays and additional meetings while ensuring confidential matters can be addressed promptly and appropriately.

Similarly, boards may wish to include all categories of permissible executive session topics in every stand-alone executive session agenda. Doing so preserves flexibility when last-minute matters arise.

Importantly, broad agenda language should not leave directors uninformed. Management or the meeting organizer can still provide confidential emails or board packets containing background information so directors may adequately prepare.

Time Requirements for Notice

Notice requirements differ depending on the type of board meeting.

Open Board Meetings

Civil Code section 4920(a) generally requires that notice of open board meetings be provided at least:

Four (4) days in advance subject to limited emergency exceptions.

Executive Session Meetings

Civil Code section 4920(b)(2) requires that meetings held solely in executive session be noticed at least: Two (2) days in advance

Adjourned Executive Sessions

When an executive session is conducted as an adjournment from a properly noticed open board meeting, the four-day notice period applicable to the open meeting controls.

Boards should also review their governing documents carefully. If the governing documents require longer notice periods, those longer periods apply pursuant to Civil Code section 4920(b)(3).

Methods of Notice

Whether the board is conducting an open meeting or an executive session, “general notice” must be provided to the membership pursuant to Civil Code section 4920(c).

General notice may be accomplished through several methods, including posting notices in a designated location identified in the association’s annual policy statement, as provided in Civil Code section 4045(a)(3)-(5).

Recap and Best Practices

Executive session agendas should strike a balance between:

• Preserving confidentiality

• Providing sufficient flexibility for unexpected matters

One effective practice is to consistently list all executive session topics permitted under Civil Code section 4935 in executive session agendas.

Boards should also consider including a recurring statement in every open meeting notice indicating that the board may adjourn to executive session to discuss those authorized topics.

These practices help boards respond efficiently to unexpected legal, contractual, disciplinary, personnel, or collection-related matters while maintaining compliance with applicable notice requirements and confidentiality obligations.

If your association has questions regarding executive session requirements or board meeting notice practices, consult you property manager and qualified association legal counsel for guidance.