Open Meetings Shouldn't Be Unproductive Meetings
One of the most common governance questions we receive from HOA boards is whether they are permitted under Colorado law to hold a closed door “working session.” When asked why they want to prohibit HOA members/owners from attending these working sessions, we are inevitably told “homeowners are constantly interrupting us and we just can’t get anything done.”
The Colorado Common Interest Ownership Act (“CCIOA”), atC.R.S. 38-33.3-308(2)(a), provides in part that “All regular and special meetings of the association’s executive board, or any committee thereof, shall be open to attendance by all members of the association or their representatives. . .” While CCIOA does not specifically define what constitutes a “meeting,” it is safe to say that anytime a board or committee convenes to conduct business, work through HOA issues or make decisions – that constitutes a meeting which the members are entitled to attend.
Closed Door Executive Sessions
Simply calling a meeting a “working session” will typically not get around the requirement that meetings be open to HOA members. Instead, C.R.S. 38-33.3-308(4) provides that closed door meetings (also commonly called “executive sessions”) are limited to the following matters:
● Matters pertaining to employees of the association or the managing agent’s contract or involving the employment, promotion, discipline, or dismissal of an officer, agent, or employee of the association;
● Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
● Investigative proceedings concerning possible or actual criminal misconduct;
● Matters subject to specific constitutional, statutory, or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
● Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy; and
● Review of or discussion relating to any written or oral communication from legal counsel.
Right of Members to Speak at Board Meetings
Many homeowners believe their right to attend a meeting of the board means they have a right to interrupt the business of the board. That belief is just wrong. While CCIOA does provide for open meetings, it does not give homeowners the right to speak anytime they feel so inclined. Instead,C.R.S. 38-33.3-308(2.5)(b) provides that:
“At an appropriate time determined by the board, but before the board votes on an issue under discussion, unit owners or their designated representatives shall be permitted to speak regarding that issue. The board may place reasonable time restrictions on persons speaking during the meeting. If more than one person desires to address an issue and there are opposing views, the board shall provide for a reasonable number of persons to speak on each side of the issue.”
The bottom line is that homeowners, or their designated representatives, have a right to speak before a vote is taken by the board on a particular issue not to interrupt the business of the board whenever they wish.
The ground rules for exercising this right to speak before a vote is taken are set by the board and are typically found in an association’s Conduct of Meetings Policy. In fact, most of these policies provide for an open forum at the beginning of the meeting and the right to speak prior to a vote being taken on an issue. In addition, a time limit on speaking is usually outlined to ensure that homeowners have the right to speak while making it possible for the board to conduct business in an efficient manner.
Finally, it is important to understand that the chair/president of a board is the person who must control the meeting to ensure it is conducted in a business-like manner. When the chair or president of a board is appointed, careful consideration should be given to whether the individual being appointed has the intestinal fortitude to keep a meeting on track and to prevent inappropriate interruptions. Without a strong leader, meetings can quickly become unproductive and subject to inappropriate interruptions with few decisions ultimately being made.