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Minimize the Legal Risks of Association Meeting Minutes
July 30, 2019
Elizabeth L. White
Sands Anderson PC
Associations need to pay close attention to the format and content of the minutes of all Association meetings. This guidance applies to minutes of regular meetings, special meetings and closed executive sessions of the Board, all committee meetings, as well as an Association’s annual membership meeting.
While it may seem counterintuitive to some, narrative-style minutes are strongly disfavored from both a risk management and practical standpoint. Narrative or “transcript-style” minutes are highly problematic in that statistics indicate that such minutes often create liability issues when such issues would have not otherwise been present. The extra length of the minutes provides additional ammunition for plaintiff’s attorneys who sift through minutes in search of statements to support their cases often plucking statements out of their original context years later.
From a practical standpoint, lengthy narrative style minutes are cumbersome to navigate when you need to review how the board voted on a matter.
Minutes should be brief and precise, which often requires more thoughtfulness than narrative-style transcription. Taking minutes is not taking dictation. It is important to note that the minutes are a part of the record of what was done at a meeting, not what was said. Minutes should not include the substance of a discussion, details or attributions as to who said what, or an accounting of how each director voted (unless a director specifically requests to note his or her dissent in the minutes). The purpose of minutes is to document Board’s actions and the Board may only “act” through the passage of a resolution by Board vote.
The content and presentation of minutes of closed executive sessions are even more important for risk management purposes. Both the Virginia Condominium Act and the Virginia Property Owners Association Act prescribe several instances in which the Board or any committee of the Association may convene in executive session. While the Acts do not mandate that the Board convene in executive session when discussing these matters, it is highly recommended that the Board do so. Per the Acts, minutes of closed executive sessions need only reference the motion made to convene in executive session and the stated purpose for the executive session. (For example: “Upon Motion duly made, seconded and passed, the Board of Directors voted to convene in executive session for the purpose of considering legal matters and consulting with legal counsel.”) Recording the substance of executive sessions exposes the Association to liability as the matters discussed often involve privacy issues, legal matters, contracts, and/or sensitive information regarding owner violations.
The minutes should also reflect that the Board came out of executive session and reconvened in open session and that nothing was discussed other than matter(s) within the stated purpose of the executive session. Any Board action taken in open session in response to items discussed in executive session should be reflected in the minutes of the open session. Such items can be assigned a case or item number which should be referenced in the minutes to protect the sensitivity of the information.
Associations should adopt standard formats for meeting minutes of the Board, committees and membership. Care should be taken to comply with the Association’s governing documents in adopting a standard format for minutes. Committee minutes can serve a dual purpose of reporting the committee’s actions and serving as the committee’s report to the board. The board should monitor committee minutes to ensure that the committees do not deviate from the approved format.
Elizabeth L. White is Sands Anderson’s Community Associations Team Leader and a recognized national leader in community association law. Her practice is centered on acting as general counsel to large-scale master planned communities, as well as representing developers, financial institutions, local governments and insurers in connection with planned community developments, condominiums and operations.