What topics are proper for executive session?

The board may meet in executive session to consider only the following: litigation; matters relating to the formation of contracts with third parties; member discipline; personnel matters; and, to meet with a member, upon the member's request, regarding payment of assessments. (Civil Code § 1363.05(b)) Executive session is also proper to consider claims strategies or other confidential issues, especially when legal advice is sought or considered.

What is within the scope of the 'executive session' exception? For example, can the board discuss all legal issues or only litigation?

Board may discuss all legal issues with counsel in executive session. The statute does not limit the topic to “pending litigation”, but rather states “consider litigation.” Further, under the attorney-client privilege, all discussions with counsel may be privileged and confidential, unless the board chooses to disclose the information to the membership. Such a disclosure should first be discussed with counsel.

Can a board discuss in executive session both contract termination and formation of contract(s) with 3rd parties?

Probably both. Section §1363.05(b) allows the board to meet in executive session “ … to consider litigation, matters relating to the formation of contracts with third parties, member discipline, personnel matters, or (with a member concerning assessments or fines as specified)”. Many believe that the concept of contract formation includes termination; further, if the contract concerns something relating to personnel or litigation or if counsel is present to discuss termination, it could be discussed in executive session.