What Your HOA Board Can Actually Discuss Behind Closed Doors

Every HOA board eventually faces the same temptation: a topic comes up that feels uncomfortable to discuss in front of homeowners, and someone suggests moving it to executive session. It seems harmless. It is not.

That is where attorney John MacDowell of Fiore Racobs & Powers starts his conversation with Matthew Holbrook on the latest episode of The Uncommon Area. McDowell has sat through roughly 1,500 board meetings over the course of his career, and he has seen firsthand what happens when boards use executive session as a way to avoid friction rather than as the narrow legal tool it is meant to be.

Two Kinds of Meetings, One Common Mistake

California HOA boards operate under two meeting formats: general session, which is open to homeowners, and executive session, which is not. The statute is specific about what belongs in executive session: legal matters, personnel, contract formation, and member discipline. It does not say boards can retreat to executive session simply because a topic makes them uncomfortable.

McDowell is direct about what happens when boards blur that line anyway. Homeowners can tell when a decision has already been worked out behind closed doors and then presented in a "sanitized" version during the open meeting. When that happens, boards do not just risk violating the Davis-Stirling Act. They lose the confidence of the people they represent.

"Homeowners get to see the sausage made," McDowell explains, and that is intentional. Watching a board debate, disagree, and sometimes vote against each other is a feature of good governance, not a liability. The problem is not disagreement. It is when board members stop treating each other, or the process, with respect.

Building a Culture of Civility

Some management companies, including McDowell's clients, have started adding civility clauses to management agreements or asking board members to sign codes of conduct. The enforceability of these documents is debatable, but the value is more cultural than legal. As McDowell puts it, the goal is simple: you can disagree, but do not be disagreeable.

The Four Categories That Actually Belong in Executive Session

McDowell breaks executive session down into four legitimate categories.

Member discipline covers two things: rule violations and assessment delinquency. Delinquency matters must be handled in executive session. Other member discipline issues should be, though the statute technically allows a homeowner to request it be heard in open session instead. McDowell recommends boards set the expectation in the hearing letter that the matter will be handled in executive session as a standard practice.

He also shares a piece of advice he gives to every board handling a disciplinary hearing: after a polite greeting, every sentence a board member says to the homeowner should end in a question mark. Board members should be gathering information, not making statements that could be mistaken for the board's official position before the board has deliberated.

Legal matters are protected by attorney client privilege, which covers not only direct communication with an attorney but also internal conversations about what the board plans to raise with counsel. What is not automatically protected is a general conversation about a potential legal issue that never actually reaches the attorney. That distinction matters if information is ever sought in a future legal proceeding.

Personnel issues extend beyond direct employees of the association to include personnel matters involving management company staff, since those employees function in the same role for practical purposes.

Contract formation is the category most often misunderstood. The statute exists to protect vendors, not the board, McDowell explains. Its purpose is to keep bidding information such as pricing and scope out of view from competitors. That is why reviewing three lighting vendor bids fits comfortably in executive session. But when a board is deciding between different features of new fitness equipment, features that will directly shape the homeowner experience, McDowell suggests the discussion of pricing can stay in executive session while the discussion of features and impact should move to general session.

Budget Is a General Session Topic

One area where McDowell pushes back on common practice is the budget. Boards often want to work through draft budgets in executive session, reasoning that much of a budget is built from contracts and personnel costs. McDowell is not on board with that logic. While specific bid numbers or individual salary figures may be appropriately discussed in executive session, overall budget formation is a general session matter. The statute does not list it among the topics a board may or must discuss privately.

Notice, Agendas, and What Gets Disclosed Later

Regular board meetings require four days notice, and McDowell recommends treating that as a firm 96 hours rather than testing the boundary. Notice must include the date, time, and location, along with Zoom details and a contact number if the meeting is held virtually, and it must include the agenda itself. Simply distributing a year's worth of meeting dates in advance does not satisfy this requirement, because the agenda still has to be posted ahead of each individual meeting.

Executive session requires two days notice and the same posting standards, including a location, even though homeowners cannot attend. McDowell believes the intent of the statute is for members to at least know that an executive session is happening, not just for internal board awareness.

Agenda items should be specific. An item like "pool equipment" is more defensible than a broad catch-all like "pool," which could stretch to cover everything from resurfacing to staffing decisions that were never clearly disclosed in advance.

After an executive session concludes, the topics discussed must be disclosed in the minutes of the next general session meeting, with enough detail that owners understand what occurred without exposing confidential specifics. A board might note that it consulted with legal counsel, held a disciplinary hearing, or approved a contract for a described purpose, without naming names or listing dollar figures.

Running the Room

The second half of the conversation turns practical. McDowell recommends the board president, rather than the manager, take on the role of keeping meetings on track, since it puts the manager in an awkward position to direct the very board members who supervise the management relationship. If a board prefers the manager play that role instead, McDowell suggests the board president state that explicitly at the start of every meeting, so the delegation is clear to everyone in the room.

Open forum gets particular attention. California law requires a mandatory time limit on member comments, something McDowell notes surprises many boards. He recommends setting both an individual time limit, such as three minutes per speaker, and an overall time limit for the open forum period, and enforcing both consistently, regardless of whether a comment is pleasant or difficult to hear. Skipping this discipline, he warns, tends to catch up with a board eventually. He has seen board meetings stretch past six hours because open forum was left unchecked, leaving homeowners who arrived with a specific concern sitting through hours of unrelated commentary before their turn ever came.

For virtual meetings, McDowell confirms boards can mute homeowners outside of open forum and can limit visible video to board members only, a practice that can help prevent disruptive behavior before it starts.

A Reminder That the Stakes Are Real

The episode closes with a reminder that meeting order is not just an administrative detail. McDowell and Holbrook both share stories of board meetings that turned tense or unsettling, underscoring why having protocols in place ahead of time, including safety measures when warranted, matters more than boards sometimes realize until they need them.

Executive session, notice requirements, and open forum rules can sound like the dry mechanics of governance. As this conversation makes clear, they are also where a board's credibility with its own community is built or lost.