QUESTION: Two of our board members resigned. The president advertised the openings and held an executive meeting to interview applicants. Is this on any level legal?

ANSWER: It is probably legal. Interviewing board candidates may not exactly fall into one of the five categories of executive session topics but it most closely fits the "personnel" exception.

Appointments. Appointments and elections are similar. In elections the membership selects directors they believe will best represent their interests. During the election process candidates can meet individually and privately with members or they can meet in group settings that may be open or closed. When it comes to board appointments, directors have the right to interview and select someone they believe will be compatible with fellow directors and best represent the interests of the association. I believe the interviews can either be open or closed at the board's discretion.

Voting. Even though the interviews may be done in executive session, the vote to fill the empty seat should be done in open session. A good argument can be made that that voting for the candidate in executive session is part of the "hiring" process but I'm not convinced. Other than a dissenting director wanting to grandstand for an audience, there is no compelling reason to take the vote in executive session.

RECOMMENDATION: Because this is an unsettled area of the law, boards should run it by legal counsel and follow their attorney's advice.