QUESTION: Our manager made an announcement that minutes of our executive sessions should not be approved so that no legal entity can request them because they are simply drafts. Is that correct? Also, are executive session minutes allowed to be disclosed to new board members who weren’t present at the meetings?
ANSWER: Unfortunately, your manager is practicing law without a license--something that could get your board and management company in trouble. Second, and more importantly, the advice is incorrect.
Drafts Are Discoverable. Keeping executive session minutes in draft form does not shield them from discovery. If the association is sued and the plaintiff subpoenas all documents related to your executive sessions, You must produce them. Some information can beredacted from minutes but you must produce them, whether in draft or final form, signed or unsigned.
New Directors. With some exceptions, new directors joining the board have a right to review the association's records, including minutes of prior executive session meetings. If the director has a conflict of interest, prior executive minutes involving the conflict may be off limits. Your legal counsel can help you decide what to release.
Recommendation: Always draft your minutes with an eye to how they would sound to a jury if read aloud in open court.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.