By Kerry Wallace, Goodman and Wallace, P.C.
There is little difference between a unicorn and the right of a Colorado Common Interest Community (“CIC”) to hold an “informal board meeting.” While most people have heard of them, they do not really exist. A legally cringeworthy response to whether minutes were taken at a Board meeting is: “But that was just an informal work session and not a Board meeting.” The Colorado Common Interest Ownership Act (“CCIOA”) requires all regular and special meetings of a CIC Board, including committees, to be open to attendance by Owners (see C.R.S. 38-33.3-308). Minutes documenting all such meetings must be maintained as an Association record. See C.R.S. 38-33.3-317 (1) (c) which requires a CIC to maintain, “Minutes of all meetings of its unit owners and executive board, a record of all actions taken by the unit owners or executive board without a meeting, and a record of all actions taken by any committee of the executive board.” Additionally, a CIC’s Bylaws will address Board meetings including how Board meetings are noticed and held. CCIOA requires the adoption of a policy regarding conduct of meetings. See C.R.S. 38-33.3-209.5. These requirements cannot be circumvented by calling a Board meeting “informal” or a “work session.”
When a CIC Board acts without a meeting pursuant to the CIC’s Bylaws or the Colorado Revised Not for Profit Corporation Act (“CRNPCA”)at C.R.S. 7-128-202, all written communications must be maintained by the CIC such as emails among, and the votes cast by, board members. See C.R.S. 38-33.3-317 (d). Board members should always use diligence and caution when communicating with fellow Board members or management regarding Board matters as those writings could be subject to record retention requirements. Often it is preferable to call a meeting versus permanent retention of email stream communications.
Even executive sessions require documentation. While a CIC Board may hold an executive session at which attendance may be restricted to the Board and persons requested by the Board, matters for discussion are limited and minutes indicating that an executive session was held, and the general subject matter of the session are a required to be maintained as a CIC record. See C.R.S. 38-33.3-308 (3-7). The only matters that may be discussed at an executive session are the following (Note: Section (5) was recently expanded by HB 22-1237):
- Consultation with legal counsel concerning disputes that are the subject of pending or imminent court proceedings or matters that are privileged or confidential between attorney and client;
- Matters pertaining to employees of the Association or the managing agent’s contract, or involving the employment, promotion, discipline, or dismissal of an Officer, agent, or employee of the Association;
- Investigative proceedings concerning possible or actual criminal misconduct;
- Matters subject to specific constitutional, statutory or judicially imposed requirements protecting particular proceedings or matters from public disclosure;
- Any matter the disclosure of which could constitute an unwarranted invasion of individual privacy including a disciplinary hearing regarding an Owner and any referral of delinquency; except that an Owner who is subject of a disciplinary hearing or a referral of delinquency may request and receive the results of any vote taken at the relevant meeting; or
- Review of or discussion relating to any written or oral communication from legal counsel.
In summary, every Board meeting must be called, noticed, and held in accordance with the CIC’s Bylaws and CCIOA. Per CCIOA, a CIC must have and maintain as an association record minutes for all Board meetings. Truncated minutes are even required for executive sessions. If a Board decides to act without a meeting, the requirements for action without a meeting found in the Bylaws, CCIOA, and the CRNCPA must be adhered to with written communications among Board members, including votes, being maintained as the “minutes.”
Do not get busted by a myth and treat all Board meetings the same with notice, agenda, and minutes.
Kerry H. Wallace grew up in Denver, Colorado and after leaving Colorado to attend the University of Notre Dame du Lac (BA 1987), she returned to Colorado for her law degree from the University of Colorado School of Law (JD 1991). Kerry is a Partner in the law firm Goodman and Wallace, P.C. located in Edwards – 15 miles west of Vail. A perfect location to enjoy favorite past times of skiing, hiking, and biking. Kerry’s practice focuses upon resort based common interest communities guiding communities through the ever-changing legal landscape. Her work has included the first reported case interpreting community record keeping and disclosure obligations under the Colorado Common Interest Ownership Act. Kerry served on the Eagle County Planning and Zoning Committee from 2003-2007, is a current Business Partner of CAI-RMC, and has been a speaker and panel member at numerous CAI Colorado - Rocky Mountain conferences. Kerry can be reached at 970-926-4447 or Kerry@goodmanwallace.com.
