Recently there appeared to be confusion as to
closed sessions of committees.
A special thanks to our "Nevada Know How" author, Tim
Stebbins, for fully researching the applicable Nevada Statures for the
community.
Executive Session Meetings
From Board Director Jim Mayfield...to...Anthem Opinions
ReplyDeleteI read Tim's article this morning on your blog, and I believe it too broadly applies language in NRS 116.31031(8).
Before I begin my reason for my interpretation, I want to state FOR THE RECORD my positions on committee executive sessions. I have never liked the concept of committees being able to hold secret meetings under the guise of an executive sessions. Most of the time, the subject matters discussed in these secret meetings wouldn't qualify if they were Board meetings. The reason for these meetings is to avoid public scrutiny of matters that a minority of people are trying to accomplish that they know lack popular support or a minority of people are trying to direct the management process.
I do not agree with Tim that NRS 116 prohibits such meetings for all committees that a Board appoints. A Board appoints two types of committees. One type ("Type 1") is appointed to "conduct hearings on alleged violations and to impose fines". (See NRS 116.31031(8).) SCA examples of this type of committee are the ARC and Covenants Committees.
A second type of committee is what is referred to as an ("Type 2") advisory committee. Advisory committees do not have delegated authority from the Board to act on alleged violations or to impose fines on behalf of the Board. All actions of an advisory committee are strictly recommendations and must come before the Board for approval before the action is binding. Therefore, advisory committees--Type 2--are not subject to compliance with meeting standards prescribed for Boards and Type 1 committees in NRS 116. SCA has sought advice from both legal counsel and NRED on this subject, both of which have orally supported this position in the past.
NOTE: I believe that Section 4.11 in the BPM comes dangerously close to empowering Type 2 committees with decision making authority that would make them subject to NRS 116.31031(8). For this reason, I have proposed when the revised BPM comes to the Board for approval that Section 4.11 be revoked.
Tim, I hope you will consider issuing a clarification of your opinion to reflect the different rules for the two types of committees.
From Tim Stebbins...to...Jim Mayfleld...via Anthem Opinions
ReplyDeleteJim,
I have never heard of "type 1" and "type 2" committees. So that concept is new to me.
NRS 116 only mentions 3 types of committees - ARC, Covenants and Nominating. We do not have a nominating committee. But it does have open language about other types of committees that may be created by the association.
NRS 82 provides for the association to create committees as desired.
I think the bottom line here is that a committee cannot have a notice and agenda that covers normal activities of the committee and then call it an "executive session" and deny attendance by members.
I believe that when a committee uses the term "executive session" they are bound by the law that addresses such type of meeting.
Jim & Tim,
ReplyDeleteAnthem Opinions thanks both of you for this feedback.
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From Jim Mayfield...to...Tim Stebbins...via...Anthem Opinions
ReplyDeleteType 1 and Type 2 are terms I use to describe the difference between committees with enforcement jurisdiction that are described in NRS 116. As with most issues related to NRS 116, the law is so poorly crafted that interpretations are needed to infer the intent of the law. NRS 116.31031(8) is a perfect example of ambiguity. I believe that this section of NRS 116 leaves not doubt as to the status and requirements for a committee that is authorized to "conduct hearings on alleged violations and to impose fines". But, the absence of language about the status of committees that are not authorized to "conduct hearings on alleged violations and to impose fines" leaves a the matter open for interpretation and thus the responsibility of the Board, not law, to set the requirements for what I refer to as Type 2 committees. Frankly, NRED and the Ombudsman have been zero help, as usual, in providing guidance on this subject. Even if NRED or the Ombudsman did provide guidance on the subject, their opinions have no legal standing.
In this environment, the best course of action is for the SCA Board to define in the BPM that all committees will follow the requirements of NRS 116 regarding notice, agenda, and meeting rules. The current BPM does not do this, and I will push after the new Board is seated to accomplish this objective.
I still think your interpretation is a stretch given the specific language in NRS 116.31031(8) and the absence of interpretation from NRED. BTW: I enjoy working with you because it is fun and productive to have civil discussions with someone who is well informed.
From Tim Stebbins...to...Jim Mayfield...via...Anthem Opinions
ReplyDeleteJim,
I have never heard of "type 1" and "type 2" committees. So that concept is new to me.
NRS 116 only mentions 3 types of committees - ARC, Covenants and Nominating. We do not have a nominating committee. But it does have open language about other types of committees that may be created by the association.
NRS 82 provides for the association to create committees as desired.
I think the bottom line here is that a committee cannot have a notice and agenda that covers normal activities of the committee and then call it an "executive session" and deny attendance by members.
I believe that when a committee uses the term "executive session" they are bound by the law that addresses such type of meeting.