Executive sessions are the only circumstance where an HOA board can meet without members present. California Civil Code §4935 strictly limits what topics can be discussed in executive session — and boards that exceed those boundaries risk having their decisions voided and facing member challenges.
Permissible executive session topics
The Davis-Stirling Act allows executive sessions only for:
- Litigation (§4935(a)): pending or threatened litigation, including conferences with legal counsel. This is the most common use of executive session.
- Member discipline (§4935(b)): hearings on rule violations, fine imposition, or privilege suspension under Civil Code §5855.
- Personnel matters (§4935(c)): discussion of employee performance, compensation, or discipline. This includes the management company’s employees if the association directly supervises them.
- Contract negotiations (§4935(d)): discussion of contract terms with third parties when discussing in open session would disadvantage the association’s negotiating position.
- Member payment plans (§4935(e)): discussion of individual member assessment delinquencies and payment arrangements.
- Formation of board response to pending civil action (§4935(a)): strategy discussions about the association’s position in active or anticipated litigation.
Nothing else qualifies. Budget discussions, vendor selection (outside of contract negotiation strategy), community policy debates, and general operational decisions must occur in open session.
Notice and procedural requirements
- Announce the executive session on the open meeting agenda before moving into closed session. State the general reason (e.g., “The board will meet in executive session to discuss pending litigation”).
- Do not take formal votes in executive session except on litigation settlement authority and member discipline. All other votes must occur in open session.
- Record the topics discussed in general terms in the meeting minutes (e.g., “The board met in executive session to discuss a pending legal matter”). Do not include privileged details.
- Return to open session to announce any actions taken in executive session that the membership is entitled to know about.
Common procedural errors
- Discussing operational business: boards sometimes use executive session to discuss controversial topics (assessment increases, vendor disputes, community rules) to avoid member pushback. This violates the Open Meeting Act.
- Failing to return to open session: the board must reconvene in open session after the executive session, even briefly, to close the meeting properly.
- Excessive duration: executive sessions that consume the entire meeting time suggest the board is conducting general business in closed session.
- Excluding the manager without cause: the board can exclude the manager from executive session discussions, but should articulate a reason (personnel discussion about the manager, privileged legal strategy).
What members can challenge
If a member believes the board conducted improper business in executive session, they can:
- request to inspect meeting minutes and agendas under Civil Code §5210,
- file a complaint with the association’s internal dispute resolution process,
- pursue alternative dispute resolution under Civil Code §5900–5920, or
- seek judicial relief if the violation materially affected member rights.
Boards should treat executive session boundaries seriously because violations undermine member trust and create legal exposure that is easily avoidable.
Where this article points next
Boards reviewing their executive session practices should also review the open meeting checklist for proper meeting structure and the conflict of interest disclosure process for situations where a director’s personal interests overlap with a closed-session topic.