Q. Can a condominium board restrict an individual board member from recording an executive (closed) session of a board meeting?
A. “The direct answer to the question is that a condominium board is within its rights to vote to prohibit the recording (or other disclosure) of executive session board minutes by anyone, including an individual board member,” says Thomas Moriarty, Principal of Moriarty Troyer & Malloy LLC in Braintree, Massachusetts. “While there is no statute or appellate case law in Massachusetts which addresses the question, it is likely that a reviewing court would recognize the authority of a board to control how minutes of executive session meetings are disseminated, to the same extent the board can restrict the dissemination of other of its confidential information.
“The enforcement of such a prohibition is more complicated. Putting aside whether executive session meeting minutes would be in a form suitable for recording, the mere fact that a board has voted to prohibit such recording does not mean that a board member will abide by that directive. A board member may ‘go rogue’ and act on his or her own, contrary to the vote of the board. To make an analogy, the legislature is empowered to – and may – pass a law prohibiting drivers on the Massachusetts Turnpike from traveling over 65 miles per hour. However, the existence of the prohibition itself does not guarantee compliance with that prohibition. There is nothing the board can do unilaterally to ensure that a board member will not violate the prohibition. In a circumstance in which the board is aware in advance of the board member’s intention to violate the prohibition by recording the executive session minutes, the board could file a lawsuit and seek an order enjoining the recording of the minutes. It will probably be a rare circumstance in which a board comes into that knowledge in advance.
“The board might be able to convince a board member to abide by the prohibition by pointing out that the violation could subject the individual board member to a claim for breach of fiduciary duty. In the first instance, a board member must act with utmost loyalty to the organization of unit owners. The disclosure of confidential information that runs contrary to the interest of the organization of unit owners could expose the board member to personal liability. While no two circumstances are alike, one can easily envision a circumstance where a board member’s violation of such prohibition will cause harm to the organization of unit owners. An awareness of that exposure might give pause to a board member contemplating such action.
“Now for the practical advice. A board should not generate minutes of executive session meetings. If a board does not generate minutes of executive session meetings, then the board does not have to attempt to restrict a board member from recording same, or undertake the effort to ensure a board member’s compliance. There is no requirement in the law that minutes be taken of executive session meetings. If the board wants to ensure that some record of the executive session is preserved, my recommendation would be to use the opportunity to update the association’s legal counsel in writing of the developments at the executive session meeting. While not every discussion in executive session may be immediately relevant to a matter upon which association counsel is engaged, it would be extremely valuable to the association, and association counsel, if counsel had access to such information if and when the need arises. Counsel would not even have to read the communication. A communication to counsel detailing the discussions which occur in executive session will not only create a valuable repository for association counsel’s potential future use, it will create a confidential attorney-client privileged communication which preserves, perhaps to the same extent, what would otherwise have been included in the executive session meeting minutes. Incorporating such information in an attorney-client privileged communication will substantially decrease the likelihood that information from an executive session is disclosed (or recorded) because no board member could legitimately claim that it was at liberty to disclose such communications.”