Secret HOA Board meeting?

One of the pillars of public governance has been limits on secret deliberations.  However, there is no definition of “meeting” in Nevada HOA law (NRS 116) and Open Meeting Laws typically applied to governmental meetings, have not been applied to HOAs. Nevada defers to the governing documents (those written exclusively by the developer) of an association (CC&Rs & By-laws) to detail the procedural rules for meetings. 

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The Nevada Supreme Court has concluded homeowners’ associations open meetings are public forums and as such play “’a critical role in making and enforcing rules affecting the daily lives of [community] residents.’” Yet, HOA meetings are treated differently from other public board meetings. HOAs are exempt from Nevada's open meeting laws.

Many HOA CC&RS and/or bylaws like those in my association provide "The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all the Directors. Any action so approved shall have the same effect as though taken at a meeting of the Directors."  While the (Nevada Real Estate) Division "discourages use of such action in lieu of a meeting unless absolutely necessary (i.e. pipe burst, fallen tree)" (see slides pg 25 & 26)  it does not take meaningful action or material sanction on a board for acting outside a formal board meeting. At point, without appropriate checks and balances Nevada HOA boards have an open and unguarded door to abuse.

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Additionally, an HOA board so inclined can meet in quorum and discuss business of the association in secret. I find this in opposition of what the law makers of Nevada intended- albeit not technically illegal. When I served as a director I refused to participate in such meetings. They called them "workshops". I believe if the board is going to gather to discuss business it should let owners know and allow them to participate - just like all governmental bodies are required to do in Nevada.

Since Nevada first adopted the Uniform Common Interest Ownership Act as the foundation of Nevada's HOA laws creating NRS 116 in 1992, strict limits have been in place on when a board could meet and what it could discuss in executive session- i.e. in secret (see NRS 116.31085(3)). Unfortunately, in the 2020-21 legislative session this was changed. As a result of SB 72(2021), the right of HOA boards to meet in executive session and discuss "proposed and pending litigation" was expanded to virtually any subject. To do so the board invites legal counsel and therein invoking privilege. A board and contracted counsel so inclined, can easily abuse this change in the law holding discussions it may seek to keep from one or all owners- and ironically, owners foot the tab for the added legal fees.