Can a Board Member be Excluded From an Executive Session?

The Washington Court of Appeals upheld a ruling that a homeowners association director who is opposing the board on an issue and is likely to file a lawsuit against the association is not entitled to legal advice from the association’s attorney, nor is the adverse board member entitled to attend board meetings where the issue will be discussed. The June 2015 case, Hartstene Pointe Maintenance Association v. Diehl, concerned the Hartstene board’s adoption of a policy for handling trees in the community’s common areas. The policy required the association manager to post notice and an arborist report when a tree was scheduled to be removed. Owners were allowed to submit written comments, objections, related information, or alternatives to the tree removal. The policy also allowed owners to get a second opinion from an independent, qualified arborist. Diehl, an owner and board member, cast the only dissenting vote on this policy. Diehl tried to appeal the board’s passing of the tree policy. He felt he had a right to appeal under the declaration, which allowed for appeal by an owner who would be adversely affected by a board decision. The association president and other directors discussed the matter with the association’s lawyer and concluded that Diehl did not have the right to appeal. A summary of the meeting with the attorney was sent to all directors except Diehl. Diehl was later asked to exclude himself from a board meeting that would involve his appeal request, but Diehl refused, and the board did not discuss the matter. The association filed a lawsuit to have the court determine whether an owner had a right to appeal a board decision, whether the board could meet in closed executive session to discuss legal issues, and whether Diehl had to exclude himself from these closed sessions. The trial court held that the association’s declaration did not give an owner the right to appeal a properly adopted board decision, and Diehl was likely to sue the association, so the board could exclude Diehl from legal meetings related to his appeal. The appeals court upheld the decision that owners had no right to appeal a board decision, unless there was evidence that the owner was adversely affected. The court did not find that Diehl was adversely affected by the tree policy. Also, the appeals court found that Diehl was acting as an adversarial owner when he tried to appeal the tree policy, not as a board member, and Diehl was likely to sue the association, so it was proper for Diehl to be excluded from the executive session. Diehl was also not entitled to the legal communications or legal advice from the association’s lawyer regarding this matter. If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!
Categories: Board Conduct