 addition of Kondo Insider. As we've said many times, more than 30 percent of our population lives in an association. And this show is specifically engineered to teach board members and owners alike on the various responsibilities and discuss issues facing the association. However, before I begin the show, I do want to say that, you know, we're very privileged every year to be on Think Tech Hawaii. It's a new show. It's a great program to think tech does for our industry and we want to send special birthday congratulations to its CEO, Jay Fidel. It's his birthday today and we want to say he told me to say it's a 16th birthday, but I sometimes get ages and IQs mixed up. So we'll let that go that way. But happy birthday, Jay Fidel. And thank you for all you do for our industry. Today we're going to talk about an issue that often gets confused. They're called minutes of an association. I don't know whether or not called hours. I've never seen an association meeting take minutes. But either way, I've invited to come back today a good friend of mine, Steve Glanstein, a professional registered parliamentarian. And I want to welcome Steve again to the show. Thank you very much, Richard. It's a pleasure to see you again and be here on the show. In 30 seconds or less, tell us a little about your background, what a professional registered parliamentarian is. Well, I got into this field as a condominium owner in 1983. Got nationally certified and loved the profession so much that I ended up doing meetings professionally for not just condominiums, community associations, but even churches and dog clubs and unions. And I've been doing it ever since, retired from the computer field several years ago. And I do this full time. I go to lots of meetings and I help them out as a parliamentarian or as a chair. So you're telling me there's more than one or two meetings a year that need a professional parliamentarian? Yes, I do about 100 meetings a year, about 32 of them in March, more than one a day sometimes. Well, I think there's about 700 condominiums plus in the association show that that shows pretty much a five or six percent of the associations during a year. Want someone to professionally assist to make sure the meeting is done properly and the record is clear. Yes, most of them run very well without having parliamentarians and lawyers there. The great majority of them are very peaceful meetings. They complain about not having enough board members or not having board members to step up to the plate. Most of them run peacefully. I get just a small percentage of them. Yeah, and I'm going to assume of the ones you get. A lot of them are just, they want assistance. There's not really a problem as far as the meeting itself, such as a removal or one of these things. Probably a lot of the meetings are fairly ordinary in the sense they just want to have the protection of a skilled professional like yourself assisting with the meeting. Yes, you got to remember, these are non-paid board members and they really do want to make sure the meeting is kept on track, run properly, and that there's any legal channel challenge later. It's been run as professionally as possible and they can defend the association's actions, what they've done at the meeting. So very few of my meetings actually turn in three removals. Well, one of the things that I've noticed, particularly in my obligations in the management field, is that there's a lot of misunderstanding about what minutes are, what they should be, what they should contain. And some people even don't look at them as necessary really that important. What are minutes? First, let's get down to the basics. Well, minutes are the official actions of an organization. They're not a record of what people said. They're not how people felt about issues. They're the official actions. This is distinguished from minutes in a municipal or state agency. It's very different. Minutes of a non-profit corporation, a condominium community association, they are very different. Robert's Rules Minutes, they are the official actions that were taken in the name of the organization. So what do you put in minutes? Well, you put in the official actions. From that flows the name of the person proposing a motion. If the motion is adopted, you put in the results of the voting on it because the voting was official action numbers. You put in when the meeting started, if there was a quorum, you put in who was chairing the meeting, who was the secretary, who was doing the minutes. Those are the types of things. If somebody has a procedural objection, that would become part of the minutes. And the chair's ruling would become part of the minutes because that's official action of the organization. So if the organization has committees, or the committee reports, let's say written committee reports, are they a part of the minutes? No. If you include a committee report as a part of the minutes, it leads to the implication that that entire report was endorsed by the organization, including how they went about and did their work, including their results. And there's an inherent danger in that because endorsing a report from a committee and not knowing everything they did could lead to trouble later. So in the committee report, usually what a group will do is they will adopt the recommendations of the committee. They will adopt the motions presented from a committee, not how the committee went about and did their work. So you don't approve a committee report, you might approve the recommendations from the committee. Because the other thing I often hear is a motion, I'll make it up, I move to paint the building pink. And then you get into the discussion, no, I like blue better. No, I want yellow. It should be pink and blue. And the narrative is not included in the minutes, correct? That's correct. You don't include the narrative. And is there reasons why? Yes, there are. Because the narrative becomes what somebody thinks is the most important part of the debate. It's not a full transcript. It may not even pick up what people are saying outside of the individual debate speaker. And as a result, you run the risk of having these minutes include somebody's opinion and being taken out of context and used against the group later. And sometimes boards get sued. So it could have legal ramifications if you have kind of a summarized version that didn't include anything. Some smart lawyer might take some sentence or some paragraph and kind of hone in on that when that really doesn't represent the entire record. Actually, that happened many years ago on the big on where where a friend of mine, a colleague of mine actually lost the case. He's an attorney. I'm not an attorney. He's an attorney and he lost the case because of spurious items that were put in the minutes. So the general recommendation is strict to stick to the motion and record that motion and record only the actions necessary. The actions necessary. It's clearly spelled out in Roberts. It's even better spelled out in an article that the real estate commission has published that I wrote in June 2015. So one more question on this area on the agenda. So we have on the agenda discussion of painting the building pink and they decide to defer to the next meeting. So it's not a newsletter. Would that be included in the minutes? Okay, they decided to defer it to the next meeting that is official action of the board at that meeting or committee. If they decide to defer it from one meeting to another, they've taken official action. Even though they haven't approved the motion to paint the building pink, they've continued it to another meeting. So that should go in the minutes. So in some ways, the minute can be a record of the past minutes and what you need to put on the next meeting because they defer it. They know that it needs to go under unfinished business under the next meeting agenda. And so it's kind of a way of maintaining the record, not only what you decided, but kind of these motions or decisions where they say defer or maybe indefinitely defer. These are all included in the minutes. Yes. That would be included in the minutes if they indefinitely deferred is a special motion called postpone indefinitely, which indefinitely defers. And that would be in the minute showing that the motion to paint the building pink was postponed indefinitely. And in the statute when it comes to condominiums, you would have to say how the individual directors voted. So let's take a quick discussion of that because you have regular sector. Let me ask it this way. Is there a difference in the minutes of a board meeting and an annual meeting? Yes, there is. There is a difference. The difference is an important one because the board meeting, the board is acting for the entire association. They are charged with the responsibility of taking care of the association. They have a fiduciary duty individual board members do have an official duty to the association. So their minutes have more requirements under the statute than association meeting minutes. What's normally in an association meeting? Association meeting minutes for an annual meeting. Usually about all you have is calling the meeting to order. They approve the minutes of another meeting or they announce that the board approved the minutes. That would go in. Perhaps they have the percentage present at the meeting. They have the results of the election. They have a tax resolution in order to avoid any payment of taxes. And then they adjourn. And that's pretty much it for an association meeting minutes. They technically don't do the type of work that a board of directors does. But there could be situations like in new business where the owner proffered in a bylaw or declaration amendment. Right. So let's use that as an example with you. If an owner makes a bylaw amendment, well first of all you want to make sure that that amendment is clearly spelled out in writing so you don't accidentally adopt an amendment that makes no sense. So the name of the owner would be there. You don't need the name of the seconder. The exact text of the bylaw amendment would be there. And because it is a bylaw amendment and it has a voting requirement that's a percentage, you would usually count it. So the count on the vote for the bylaw amendment would also be there, including an indication so whether it was adopted or rejected. On the other hand, boards can't make bylaw amendments or declaration amendments without prior notice to the homeowner. So this would be from an individual owner, not from the board or correct or someone else. If I remember correctly. Yes, you remember correct. Yeah. Especially for condominiums, if the board proposes that they need to make sure it goes into the notice. And just so everybody understands there are, you know, we're governed by the governing documents of the association. There are governing documents out there that have other annual requirements, like approving the management company or approving the auditor. Those might be under a new business as well. It's a normal course of business. Yeah. For example, some bylaws will say that the management contract must be approved on an annual basis and they require a very high vote, a majority of the common interest to approve it. However, however, if that is presented at the meeting, the results of the voting need to be in the minutes, including the motion itself. So obviously, minutes are really, really important to have an accurate legal factual record of what's going on in the association. Definitely. And it's important also recognize that minutes can not only be subpoenaed, but when future perspective buyers look to buy property, they're going to want to see those minutes. So if those minutes of things about some person was assaulted in the parking lot or they put in lots of things like that or owners forum issues, then that can have an effect on an association and quite a negative one. Well, the other thing is we kind of digressed out in the end and we need to get that clear. We were talking about board meetings and there is something called an executive session. What is an executive session? Well, an executive session is a type of session. It's confidential. Board members are not allowed to disclose what happens in executive sessions. And even if there's non board members there by exception or by rule, they're not allowed to disclose it. What happens in executive session is a separate set of minutes and it's only supposed to be approved in executive session, not in regular session. So generally speaking, you say you would recommend that an executive session that minutes be taken. Oh, absolutely. Especially if you have situations in executive session where they agree to settle a case for a certain amount. If there's no record of it and the board has litigation a couple years later, where's the record that it was approved? That the settlement was approved. So they need to have an executive session set of minutes. They need to follow the statute with executive session and follow Roberts. Should they have any legal issues? They need to get to their attorney with the executive session minutes and determine how they want to manage it. So I know the state law for a regular portion of the meeting requires the individual vote of each director to be recorded. And the state law in executive sessions does not require the individual votes. Do you recommend they record individual votes in executive session? That's more of an organizational issue. I believe that if they do, then it's consistent because it's possible that those executive session minutes might be released to the public. The board does have the option to release the executive session minutes. And when the need for security or secrecy is no longer there, there's no reason why they can't approve them for release. So it should technically, it would be a good operating practice to have it in there regardless, even though the statute itself does not mandate it. Well, the current statute certainly says the board must announce their purpose of going in an executive session for a board before doing so. So they really can't just call an executive session. They have to do it from a regular meeting to comply with the statute. But then the statute also says that when they finish the executive session, they have to announce any actions they took that doesn't jeopardize the association. They may have some settlement discussions. You wouldn't want that to be public. Correct. Things like settlement discussions or settlement decisions, they may never see the light of day. However, things like giving a bonus to the employees, the fact that they approved it might be fine. But the discussion itself is remains an executive session. So even if they've authorized the minutes to be released, the actual discussion should never come out of executive session unless the board specifically authorizes it. I've got hours more questions for minutes, but we're going to take a short break for a minute and you'll be right back at Kondo Insider. You're watching Think Tech Hawaii, Citizen Journalism from Hawaii, finding the intersection of our sense of place and our place in the world right here at home. Great content for Hawaii from Think Tech. Aloha, I'm Kaui Lucas, host of Hawaii is my mainland here on Think Tech Hawaii every Friday at 3 p.m. We address issues and importance for those of us who live here on the most isolated landmass on the planet. Please come join me Fridays at 3 p.m. Mahalo. Hello, this is Martin Despeng. I want to get you get excited about my new show, which is Humane Architecture for Hawaii and beyond. We're going to broadcast on Tuesdays 5 p.m. here on Think Tech Hawaii. Welcome back to Kondo Insider where with Steve Glanstein, professional registered parliamentarian talking for the last 15 minutes about association minutes. So I guess minutes are really longer than or it's multi minutes more than minutes for whatever it may be. But anyway, we talk about executive sessions and boards going into executive sessions and and the issues with regard to announcing what you did and all these kinds of things and in general terms, do associations ever go into executive sessions? You know, I've done over 1500 meetings between 15 and 1600 meetings and out of all those meetings, I've only had one meeting that went into executive session as an association and they went into it for a specific purpose to discuss a very sensitive matter and they wanted to make sure that that matter did not have any any disclosure outside of the association meeting. And so they went into executive session, they did what they had to and then they came out and they took some action. And probably in those cases, would that something you should ask your lawyer, whether it makes sense or good, because there's all sorts of legal issues out there or something the board should feel comfortable. You know, it seems to me that the thing to get out of the coconut wireless faster than we want them, no matter what you say to people, but it should probably be taken very carefully before you go into an executive session. And especially not so much with association because it's very rare, but with a board meeting, they need to follow the statute. For example, a board meeting that decides to elect officers should not be going into executive session to elect their president and vice president, secretary and treasurer. But if they're going to go into executive session for personnel matters or if they've been threatened with a lawsuit, they want to discuss that matter, then clearly that's something that would be appropriate for executive session. Do you think it's reasonable to go into executive session with, I'm going to say an owner or maybe even an association employee to resolve maybe a dispute on a house fine or a rule or a delinquency that might be embarrassing and hard to have a conversation in front of all the owners? Do you think that's reasonable? It depends on the situation. I'll give you an example. An owner alleges that they were assaulted by an employee of the association. They might ask that the board go into executive session so they can discuss a matter related to personnel or at least transmit to the board a matter related to personnel without anybody else hearing, especially if the owner is embarrassed about what happened and the board might go into executive session just to have the owner explain what happened and then excuse the owner so the board can consider what to do. So that's an actual case where executive session would be appropriate. And that's reasonable in your opinion. Yes, sometimes they'll go into executive session and I will be there as a parliamentarian to make sure the procedure is done right. However, I would ask the board to make sure they give specific permission for me to be there. You know, one of the things in the legislature this year and I don't have the exact bill before me that one of the bills suggests that associations in general be prohibited from going into executive session ever and all those have to be held in public. What's your thought about that? I think that that's going to have some very seriously negative consequences. For example, let's say that a board is completely prohibited from executive session. Then they'll adopt a motion authorizing the president to settle a multi-million dollar lawsuit. There won't be any executive session. They'll just adopt that motion and now you've got a dictator who's going off and doing what they wish. So I think the unfortunate side is that when you draw a brush like this and you say no executive session, you create an environment where boards are going to do things to try to get the association's business done and some of those effects could actually be worse than having an executive session. Well, someone asked me about it. I said, look, our city council or the police commission just went into executive session and discussed a settlement with regard to the police chief's contract. Then I've seen the city council go into executive session. I've seen lots of private or public organizations, city council itself, go into executive session. So I don't think we should restrict boards. I think it's an educational matter for boards to know how to do an executive session legally and properly to protect the association, but not use it as a mechanism to avoid public debate, which has been accused of the tourism association. Yeah. And that does concern me because I've seen that in the in the neighborhood commission, neighborhood board structure before where the executive session was used quite frequently. But a board, you need the education and they need to really be grounded that the executive session is not for something that you're uncomfortable with. It's for something that is permitted by statute. It may be uncomfortable to conduct a meeting that's open, but you've got to recognize that you are limited by statute to executive session for just certain specific items. And you may not agree with me, but I've always tried to council boards when you go to executive session, just don't say we're going in executive session to discuss legal and personal matters. It's kind of like a catch off. Go in and say we're going into the session session to discuss the lawsuit by ABC against the association and discuss a personal matter with regard to our resident manager or the garden or whatever it may be, at least try to be a little more transparent on the general topic without giving away any of the secret sauce. Yeah, and that's more of a property management organizational perspective than a parliamentary one. I think you're making that based on your experience with lots of boards and lots of associations and that's fine. Well, owners right or wrong or indifferent always assume the worst and the conspiracy theory. So the more transparent boards can be without jeopardizing the association and be more definitive of what they're going to discuss without getting into the details. So the owners know we're going in to talk about delinquency of an owner. All the conspiracy is something else that they may be upset about kind of goes away and. Sure, except that you don't want to go into executive session due to the delinquency of John Doe of X thousands of dollars. You wouldn't want to have that much detail to go into executive session. You probably would go into executive session just to discuss the outstanding delinquencies. Well, a lot of times as you suggested earlier, they go into executive session to discuss settlement of a lawsuit. They may be making a low ball offer, but saying what we'd go higher if necessary. And you wouldn't want that publicly disclosed because it destroys your bargaining position and trying to settle a lawsuit. So it's a balance between what you can say and can't say. Yes. And absolutely. I had one association where they removed a director for breach of fiduciary duty because she disclosed an ADA settlement contents from executive session that was supposed to be secret. So the owners got together. They had a special meeting and she was removed for breach of fiduciary. So it's really important that board members take executive session seriously and not abuse it. This may be a legal question, but it's certainly worth an opinion. So if the board settles a lawsuit and the settlement has a confidentiality provision in it, what is the board's obligation to disclose? Well, it's definitely a legal question and they certainly should have legal counsel before they start talking at a regular board meeting about the details of the settlement because they could conceivably jeopardize that entire settlement if they're violating its terms. So it's really important that a board get legal help when they're dealing with these legal issues before they start making public statements. I know in a kind of IONAM which had a construction defect litigation, they didn't enter into a settlement agreement. And for owners to get a copy of the settlement agreement, they had to sign a nondisclosure because they had a confidentiality provision. So to get a copy as an owner, the board was willing to give it to you, but you had to sign a nondisclosure agreement that you know is confidential. And I guess that puts certain liability on you if you violate that written agreement. So there are ways to get information to owners that is confidential. But like you said, the best thing to do is to make sure you get a lawyer to guide you through that process because you could disrupt the entire settlement, which may be good for you, by the improper disclosure. Well, it could be worth to expose associations to liability, board members to personal liability, and there's insurance issues associated with it. So they have to really proceed carefully. One more thing, and I have a couple more questions about the legislature. Sometimes, and I basically say you should hold a board meeting to make decisions. But we all realize there's time when there's an emergency. I know I had a project that had gas leak, and they choked the gas off, but then people had no heating. And so the board wanted to approve a contract real quick for the existing plumber who knew the building backwards and forwards. It was over $10,000. And so they did an email survey here saying, look, we've got to get this done. No one has any gas. No one has any heat. And again, I'm going to repeat that under most circumstances, you should hold a board meeting. But there are going to be emergencies. After a hurricane, for example, how does that handle in a minute? Because you really didn't hold a board meeting. And you made an emergency decision outside of a board meeting. How do you handle that in minutes? Well, that decision made outside of the board meeting is a private decision. That's not an official act of the board. So what they need to do is call a regular board meeting or a special meeting for the purpose of ratifying those actions that were taken outside of the meeting. And the proper procedure at that meeting is I move to ratify the following action. And then they just vote on it. But between the time they've taken that position, that decision, to the time they ratified there's a specific risk because it's not the official action of the board or for that matter of the association. Well, I can see a 5-4 vote to do something. And then they come back into the meeting and they already signed a contract and did the work. And then one guy says, well, you know, I'm thinking about this. I would have voted differently now. I mean, it puts risk, but also, you know, certainly the board and the president signed the contract based on his belief that it was a 5-4 agreement. So I guess it's a sticky wicket for lack of a better word. It actually is. And that's where that's why it's very dangerous to have decisions made outside of a properly called board meeting. Now today with technology, 5-14B, the chapter on the condominium property act, it allows for them to do some telephonic meetings. You know, if they get them all together, many bylaws say all the directors together at one time, they can wave notice by their presence. So there are some mechanisms that the statute has helped a little bit. Well, I'm glad you brought that up. It takes me back to the legislature. And if I understand the statute correctly today, you have to get three days notice to all board members to have a board meeting. And or I should say, you have simultaneous notice. A simultaneous notice. So that helps us in emergency situations. We have emergency gas leak. I'm notifying everybody, making sure you notify every director. And you hold a telephonic meeting too, which is an official meeting. One of the proposals before the legislature today is to A, make it seven days with no exception. I mean, there is no emergency meeting that the agenda has to be published and can't be deviated upon when you have your meeting. And that all the material the board gets must be available for examination by the owners or owners given a copy or the owners given a chance to submit their own documentation. Thoughts? Well, I hope that the gas leak is not dangerous to owners, considering how cold it's been if it's a recent gas leak. That's that could be pretty dangerous here. That ignores the reality of getting information available to board. Sometimes the information is being collected at a last minute moment, last minute, and it's not available to a day before. It puts it quite a burden in terms of management. And what that is basically doing is handicapping boards enough so that the deliberation process, the process of taking care of association business, is going to be handicapped once again. Now, there's no reason that I can see why they can't make these documents available to owners if they're non-confidential. Things like that. They can follow the statute as far as that. That goes. But this is not a pay board. They have work to do. And by making it absolute, when it comes to documents, agenda, and things like that, especially for regular meetings, you really do run the risk of damaging associations, in my opinion. Well, sadly, we run out of time because there's a lot more before the legislature on the debate of private housing versus government housing with regard to who's responsible for what. Now, I want to thank you for being here today. And we appreciate your counsel all the time with regard to parliamentary procedures and the good work you do in the industry. And I thank all of our listeners for watching Kondo Insider. We have an exciting show next week on various legal issues, again, paralleling with what's before the legislature. And we hope you come back and watch us again Aloha from Kondo Insider.