Adams Stirling PLC


Executive Session Minutes. An executive session meeting is a proceeding of the board of directors. California law requires that boards keep minutes of their executive sessions. "Each corporation shall keep minutes of the proceedings of its . . . board . . ." (Corp. Code § 8320(a)(2).) Such minutes are also referenced in various places in the Davis-Stirling Act. (Civ. Code § 4950(a), § 5200(a)(8), § 5215(a)(5)(D).)

No Right to Inspect. These minutes are separate from open meeting minutes since there is no right by members to inspect them because of the confidential information contained in them related to litigation, personnel matters, disciplinary actions against members, and foreclosure actions. Even though members do not have a right to review and copy executive session minutes, boards should be aware that such minutes are discoverable in litigation.

Content of Minutes. Executive session minutes should reflect the deliberation and reasoning behind actions taken by the board in executive session. For example, if the board were to give the manager a warning, minutes should reflect what occurred. The minutes might state that "The Board expressed dissatisfaction with the manager's performance and gave the manager a written warning that failure to resolve tardiness and absenteeism would result in her dismissal. The board voted not to renew the  manager's one-year contract and made the manager's employment at-will." For additional information on meeting minutes content, see "HOA Meeting Minutes."

Approval of Minutes. Executive session minutes may be approved at the board's next open meeting or executive session. However, the risk with open-meeting approvals is that the board may need to discuss corrections or revisions to the minutes which could result in the disclosure of confidences and/or waiver of attorney-client privilege. Accordingly, discussion of any changes to executive session minutes should take place in executive session.

No Distribution of Minutes. Minutes of executive sessions should NOT be distributed to the membership. (Civ. Code § 4950(a).)

Noted in Open Meeting Minutes. Even though members do not have the right to attend executive sessions, boards must keep members informed about the general nature of the business conducted in their executive sessions. The minutes of the next open board meeting must generally reflect the board's executive session:

Any matter discussed in executive session shall be generally noted in the minutes of the immediately following meeting that is open to the entire membership. (Civ. Code § 4935(e).)

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