Work sessions are similar to Committee meetings – there is no authority to make decisions for the Board (unless specifically delegated). Accordingly, a work session is normally for research or delving into one or more topics, perhaps how to write an RFP, what language should be in a Policy/Rule, whether to change the on-site manager’s hours, and the like. However, formal discussion and voting on items should take place during Board meetings and be recorded in the Minutes.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
In my representation of HOAs and condo associations, a question that has often been posed to me is whether a gathering of Board members is always considered a “Board meeting” that must comply with the formalities outlined in S.C. Code Ann. §§ 33-31-820 through -824. As a preliminary matter, while South Carolina’s laws governing nonprofit corporations do not require that members of the association be allowed to attend Board meetings, some associations’ governing documents do require it, and in any event, I always advise my association clients to allow members of the association to attend Board meetings, so as to avoid creating the impression among the membership that the Board is conducting the association’s business behind closed doors. To the extent an association does follow a policy of allowing members to attend Board meetings, it is especially important to understand what legally constitutes a “Board meeting.”
Section 33-31-820(a) of the South Carolina Code provides, “If the date, time, and place of a directors’ meeting is fixed by the bylaws or the board, the meeting is a regular meeting. All other meetings are special meetings.” Typically an HOA’s governing documents will specify what number of directors constitutes a quorum; the general rule is a majority of Board members. Proper advance notice of the meeting must be provided to the Board members as provided in S.C. Code Ann. § 33-31-822, except in cases of emergency. (See S.C. Code Ann. § 33-31-303(b)(1).) Please note that the notice requirements in S.C. Code Ann. § 33-31-822 are different for regular meetings and special meetings. Section 33-31-822(a) provides that regular meetings of the Board may be held without notice, unless such notice is required by the bylaws or unless the purpose of the meeting is to remove a director or to approve a matter that would require approval by the members, in which case seven days’ written notice is required unless waived. Section 33-31-822(b) provides that unless the articles or bylaws provides otherwise, special meetings of the Board must be preceded by at least two days’ notice to each director of the date, time, and place, but not the purpose, of the meeting, unless notice is waived. For the requirements of waiver of notice of a meeting, see S.C. Code Ann. § 33-31-823.
If the association’s governing documents require that members must be allowed to attend Board meetings, presumably the exception to that rule would be when the Board goes into executive session, which is generally when the Board is meeting with the HOA’s attorney, discussing pending or anticipated legal matters, discussing personnel matters, or discussing or reviewing individual owner accounts.
Can HOA Board members ever get together to socialize? It is not improper for Board members constituting a quorum to socialize, so long as no conversation occurs regarding association business. However, Board members in associations whose policy is to allow members to attend Board meetings must be aware that a gathering of a quorum of Board members, even at a purely social event, can result in a member potentially alleging that those Board members improperly conducted a Board meeting in violation of the Association’s bylaws.
Lastly, in regard to the question about “work sessions,” such a session or event is not defined or recognized in the South Carolina law that governs community associations or nonprofit corporations generally. Given the lack of any distinction in applicable law between a work session and a regular or special meeting of the Board, members of the Board should be aware that unless their association’s governing documents specifically address “work sessions” and define the characteristics that distinguish a work session from a Board meeting, a “work session” will likely be considered a Board meeting from a legal standpoint if a quorum of Board members is present and if association business is discussed. If the Board wishes to have the ability to conduct “work sessions” without being subject to the requirements for regular or special Board meetings in its governing documents and/or in the South Carolina Code, I would recommend to the Board that it should seek to amend its Bylaws to specifically provide for work sessions and to specify the ways in which such sessions will be considered distinct from regular or special meetings of the Board. For instance, if it is normally the association’s policy to allow members to attend Board meetings, the amendment could provide that the Board may hold a work session in which only Board members may attend. The amendment might also provide that no minutes of a work session are required to be kept, and that any written work product created during the work session is to be deemed a preliminary draft and is not to be considered as an official document or business record of the association, and is therefore not subject to being produced to members in accordance with S.C. Code Ann. §§ 33-31-1601 through -1621. As a cautionary note, “work sessions” should be by definition infrequent and aimed at conducting business of an unusual nature, where regular and special Board meetings will not suffice. Such work sessions or any amendment created to allow them to be conducted should not be utilized as a way to circumvent the requirements of regular or special Board meetings.
As always, the answer regarding any specific situation may vary depending on the particular facts of that situation, and it is advisable to consult an attorney knowledgeable about this aspect of community association law.
Sean A. O’Connor
Finkel Law Firm LLC
4000 Faber Place Drive, Suite 450
North Charleston, South Carolina 29405