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DarylF
(Washington)

Posts:140

09/19/2008 9:51 AM
Are emails between board members part of the public record? Example, if I request to see the records of our HOA board should I be allowed to see emails amongst board members? The emails are copied to all board members and decisions are being made through email, between meetings. I know someone on the board that thinks i need to read them and I want to be sure I won’t get them in trouble before reading them. Our state law: http://apps.leg.wa.gov/RCW/default.aspx?cite=64.38.045 says “All records of the association, including the names and addresses of owners and other occupants of the lots, shall be available for examination by all owners…” I’m thinking these emails are clearly “records of the association”? Thoughts? Thanks.

MaryA1

Posts:0

09/19/2008 9:55 AM
Daryl, I agree; however I don't agree the board should be conducting business thru email communication; this is the same as holding a closed meeting. In AZ the board would be in violation of the open meeting law! Of course if your state doesn't have one, then it's OK -- I just don't think it's right.

AnnaD2
(Florida)

Posts:924

09/19/2008 10:02 AM
We all e-mail each other every single day. It's called communicating. We don't make decisions or "vote" on anything. We may do follow ups on things already decided at meetings. For instance: the Board may have voted at a meeting to have a landscaping company do a job for a certain amount of money, and agreed that the work should be scheduled. After that meeting it's not unusual for a board member to let everyone know which date the job will be done; or that the job was done; or something else pertaining to that topic. If anyone wants to see those e-mails, they're welcome to....but it would probably bore them to death.

JohnK3
(Pennsylvania)

Posts:967

09/19/2008 10:09 AM
Our Board conducts much of our business via e-mail. If we didn't, we'd be scheduling meetings every week, which would not be workable. And no, we don't consider these exchanges part of the official or otherwise documents of the HOA. They are private communications among three guys trying to keep the balls in the air - most often to develop a consensus, share news, or address problems. Discussions via computer rather than phone or in person.

DarylF
(Washington)

Posts:140

09/19/2008 10:11 AM
http://apps.leg.wa.gov/RCW/default.aspx?cite=64.38.035 "Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners." The exception is closed sessions, legal stuff, violations... If they are making decisions and talking board action over email are they breaking state law? Thanks for the replys. I emailed my state leg support line for an answer too.

MaryA1

Posts:0

09/19/2008 10:19 AM
Posted By DarylF on 09/19/2008 10:11 AM http://apps.leg.wa.gov/RCW/default.aspx?cite=64.38.035 "Except as provided in this subsection, all meetings of the board of directors shall be open for observation by all owners of record and their authorized agents. The board of directors shall keep minutes of all actions taken by the board, which shall be available to all owners." The exception is closed sessions, legal stuff, violations... If they are making decisions and talking board action over email are they breaking state law? Thanks for the replys. I emailed my state leg support line for an answer too. Daryl, YES! Why? Because the law states ALL meetings of the BOD SHALL be open to ALL members. If action is being taken by email then the "meeting" is not open to ALL members. A number of years ago the AZ Attorney General issued an opinion stating anytime a quorum of the board meets to discuss HOA matters, whether action is taken or not it is a board meeting and must be noticed. Using this philosophy regarding what constitutes a meeting you can see that an email communication that goes to every member of the board (resulting in a quorum) constitutes a meeting.

JohnK3
(Pennsylvania)

Posts:967

09/19/2008 10:19 AM
If the Board was in a live chat room, one could argue a meeting takes place. But if #1 e-mails #2 with a copy to #3, and #2 replies to #1 & #3, then #3 adds a thought to #1 & #2.............. Come on. Volunteered service is taxing enough. Making the Board's job more difficult is a good starter recipe for the Board taking a hike.

DarylF
(Washington)

Posts:140

09/19/2008 10:36 AM
Posted By JohnK3 on 09/19/2008 10:19 AM If the Board was in a live chat room, one could argue a meeting takes place. But if #1 e-mails #2 with a copy to #3, and #2 replies to #1 & #3, then #3 adds a thought to #1 & #2.............. Come on. Volunteered service is taxing enough. Making the Board's job more difficult is a good starter recipe for the Board taking a hike. From what my friend on the board is saying, the emails are meeting items that come up between meetings and issues they missed at meetings. My friend says she keeps replying to all saying this needs to be discussed at the meetings, but she is ignored and the other two vote and make decisions. It's not just friendly conversation.

JohnK3
(Pennsylvania)

Posts:967

09/19/2008 10:46 AM
Daryl, I'll now limit my response to whether a meeting has taken place via e-mail exchanges. I don't think so, and my Encarta dictionary agrees.

BonnieE
(Illinois)

Posts:331

09/19/2008 11:43 AM
Regarding the use of emails to "conduct" Board business between meetings: My Board conducts business via email, and also by closed meetings (“informal” meetings that may not include all board members, but usually the majority, and which have a specific purpose, such as to discuss development of a new policy, revision of rules, a proposed budget, etc.) Email business typically relates to a HO’s Alteration or Addition request, a response to a HO query/request, or a contractor proposal for which a decision is needed prior to the next Board meeting. The result of the email vote then results in an action taken (approval or disapproval of HO request or contractor proposal). These emailed votes are then ratified at the next Board meeting. Would these be considered a meeting which should have been open to the membership? Our governing docs have a requirement for open meetings to the membership, except for enforcement sensitive issues (violation hearing). Should the content of the emails or notes from the informal meetings be retained as part of the HOA records and be made available to any member who requests them? Is there a legal requirement for retention of HOA electronic records such as exists at the federal and state governmental level? What do you think? Based on what Daryl is asking about, it sounds like my Board does the same, and perhaps goes even further. I share the same concerns. Bonnie

GeraldT4

Posts:1022

09/19/2008 11:45 AM
JohnK3 - You absolutely are holding a meeting in your email communications. You state, "Our Board conducts much of our business via e-mail.". Now you come up with an excuse, 'If we didn't, we'd be scheduling meetings every week". And I say, 1) so what if you have to meet every week, and 2) publish the emails.

SusanW1
(Michigan)

Posts:5202

09/19/2008 3:34 PM
UNLESS YOUR DOCUMENTS say you can hold meetings via email, you can not conduct business that way Why? Because it deprives the right of all persons able to attend the meeting of face to face discussion and the motion/debate/voting process. Also, minutes can't be taken and approved by the entire group that should witness the legality of the meeting and its decisions. Some might say, "depends on what 'conduct business' means", but I say if decisions are being made, money committed, and actions planned, then THAT is conducting business. Our bylaws have a section in them called "Holding a Meeting without a meeting" where the president can poll the board by phone, pass aa motion, and then it is ratified at the next meeting. But that is for EMERGENCY issues only. The liability for the board in making email decisons is enormous. Live people, with live minutes taken at a live meeting, please!!! P.S. This does NOT include a phone call telling you that the landscaper is going to start on Tuesday instead of Monday.

MaryA1

Posts:0

09/19/2008 4:30 PM
Posted By JohnK3 on 09/19/2008 10:19 AM If the Board was in a live chat room, one could argue a meeting takes place. But if #1 e-mails #2 with a copy to #3, and #2 replies to #1 & #3, then #3 adds a thought to #1 & #2.............. Come on. Volunteered service is taxing enough. Making the Board's job more difficult is a good starter recipe for the Board taking a hike. John, The AZ Attorney General would view that as a meeting! Everyone is responding with their opinions; if that's not a meeting I don't know what it is. It's not a matter of making the board's job more difficult, it's a matter of being open with the members and giving them an opportunity to attend the meeting and in AZ, at least, the right to speak b/4 the board votes on an issue. BTW, why does your board need to commuicate on a daily/weekly basis with such a small assn? I think you 3 guys need a woman to organize you! LOL

DonnaS
(Tennessee)

Posts:5671

09/19/2008 4:40 PM
Mary, We are seeing this more and more, Boards doing lots of e-mailing between themselves, which actually is skirting the open meeting laws and Statutes. Florida has them, Arizona and California as well have them. I am very much against this happening unless it is an absolute nescessity. We used to do our homework on an individual basis, get to the meetings and then discuss the issues at hand. Memberships have the right to know what is going on with their HOAs. When a decision could not be aquired, then we tabled the item. I think about this often because it comes up here so often. Some of it is the lack of following what Boards are supposed to do and that is to have a true open meeting. Discuss items before the membership, do your homework ahead of time and do what you should do at the meetings and that is to be informative and present intellegent information to the members.

BonnieE
(Illinois)

Posts:331

09/19/2008 4:53 PM
Susan – what you are saying is what I thought. But, where does one draw the line? It seems a bit blurred to me when it comes down to the actual implementation. Is an informal meeting to discuss a proposed budget and develop revisions to it for the PM to address acceptable? This occurs here. The only thing that happens at the Board meeting is to vote on the revised proposed budget – whether it can be sent out to the HOs for review/comment. Of course, the vote is always unanimous because everyone has already agreed at the informal meeting and/or via email (for acceptance of the revisions). Is this acceptable or not? A HO sends in a request to install a satellite dish. The Board discusses via email; votes a decision, and the HO gets a letter. This decision is ratified at the next Board meeting. Acceptable or not? A HO makes a request for landscaping problem to be addressed. Board makes decision via email and response sent to HO. Depending on request, may or may not be ratified at next Board meeting. If $ is involved will be ratified at next Board meeting. Acceptable or not? The Board conducts a landscaping review with the landscaper. Orally they agree as to what will be included in the proposal. Proposal received; may be discussed in one of the informal meetings; sometimes at the next Board meeting. Decision made at Board meeting on whether to accept “as is” or with noted changes. Acceptable? Our docs do not address email - but it is used. Four Board meetings per year are required (5 are held). A special meeting may be called by the pres or 1/3 of the directors. Our declaration states: “Each meeting of the Board shall be open to any Owner except….” (for the usual – litigation, violations, info regarding employment, dismissal, etc. of an employee). So, is the Board conducting business outside of a board meeting? Thanks - Bonnie

SusanW1
(Michigan)

Posts:5202

09/19/2008 5:26 PM
From your examples, it seems like your board is meeting and conducting business via email. Do your bylaws permit this? Some Boards, where the membership is scattered and/or seasonal, meet via teleconference. BUT - they are not subject to general membership attendance at meetings. This is going to be a real hard habit to break. Make sure that at meetings, motions are made and voted on, and recorded in the minutes for EACH action that the board takes. All it would take is ONE complaint from a Member and all of you could be RECALLED!!

DonnaS
(Tennessee)

Posts:5671

09/19/2008 5:35 PM
Bonnie, I would say from the examples that you wrote, yes, your Board is conducting business outside of Board meetings. In Fl, even ARC meetings are required to be posted 48 hours prior to the meeting.Sometimes, there might be some controversial item up for approval and by posting the meeting, neighbors are open to attending in case they want to voice an opinion. No secrecy from the committee. What you posted seems to be mostly ARC intems so that could be easliy fixed by a regular schedule for all ARC decisions. We did ours monthly in the beginning but changed to bi monthly when the concept of getting approval finally sunk in. The iformal meeting as we call them--"workshops" is another good vehicle to allow membership to be involved or just to sit and watch their Boards at work. But they also must be posted 48 hours because there is a quorum of the Board in attendance.

MicheleD
(Kentucky)

Posts:4491

09/19/2008 6:11 PM
In this particular case, I strongly urge the original poster to contact an appropriate attorney in Washington and obtain any advice and guidance from him.

FrancescaM
(Washington)

Posts:264

09/19/2008 6:24 PM
Our board was advised by our HOA atty. ALL EMAILS ARE ADMISSIABLE IN COURT. DO NOT EMAIL ANYTHING THAT YOU WOULDN'T MIND A JURY READING/ We get emails from the HOA OM in regards to bids recieved or if they need advisement on any already voted on issue. Otherwise any other communication, discussing of itmes is considered a closed meeting and its against the law.

RobertR1
(South Carolina)

Posts:5164

09/19/2008 6:29 PM
To all, If e-mails are suspect, what about telephones? Also we sort of agreed here at one time that a couple of Board members sitting around discussing Board business was indeed a meeting. Is a committee meeting and decisions made to spend association money under the quidelines of the documents subject to restrictions. Is one BOD discussing Board business with two committee members restricted? All kinds of little serpents lying around in the weeds here. Personally, if I had no cause to question the Boards veracity and this e-mail stuff did not replace open meetings, I doubt it would bother me. Now if Board meetings were closed, I would be more concerned about the closed meeting than the e-mails. In the real world, can this be controlled and can we rely on the information in the e-mail as being an edict or authentic, if we want to use it as a weapon against the Board. Probable in our day and age, e-mails can be damning and some legally so, but I bet you have to search far and wide to amass enough to convince a Judge that the e-mails constituted a meeting, especially if there was no proof of harm, and the judge would send the lot to jail for criminal conduct. Which brings up another snake. What kind of offence would it be, criminal or civil?

DavidW5
(Virginia)

Posts:334

09/19/2008 7:03 PM
It seems to me that the above discussion has ignored one critical factor as to whether email discussions or face-to-face discussions among board members are "meetings" subject to the open meeting requirement: is a quorum of the board participating or present? If there is no quorum, then no official action can result and a board meeting subject to open meeting requirements (in my opinion) has not taken place. If a quorum of the board participates and the discussion results in an action by the board, then the open meeting requirement applies.

RobertR1
(South Carolina)

Posts:5164

09/20/2008 1:42 AM
David, I suppose consenual intent could be the crux in the matter. In any event, and being remote from the scene, I think it is hard for this group, to have much to say that is authenic. All of the exmples cited probably happen at one time or other. Ideally the Board should do nothing that casts suspecion and doubt on their conduct. They should be as pure as the newly driven snow.........., but they are not, and it is a tough enough road to confront the Boards action and have it changed. Maybe wide lattitude is the answer when trying to judge a Board sending e-mails back and forth. It certainly makes their job easier............and I don't suppose that is a bad thing.........all benefit. Same for other kinds of communications, but if wrongful intent is involved, they are accountable.

GlenL
(Ohio)

Posts:3622

09/20/2008 5:40 AM
Daryl, while the emails are indeed part of the Association records and you should be able to view them, your chance of getting them absent a court order is probably nil. However your friend can show them to you. Unless they are between the BOD and the Associations attorney they are not privileged. If I send you an email, I have no power to stop you from forwarding it to another party anymore than I can stop you from allowing a third party to read a letter I send you. Now they could try to include a confidentiality notice in the email such as many businesses use but I doubt that it would stand up in court as you are a member of the Association and ultimately entitled to the information and once it is forwarded to you, you become the intended recipient. The law in your state may vary so check local listings. CONFIDENTIALITY NOTICE: This message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. HindmanSanchez had an excellent article on this in their e-newsletter: http://www.imakenews.com/ortenhindman/e_article000703786.cfm?x=bcLh4H3,b4CySVHk,w

Your board meeting is not held in the Situation Room of the White House. It's not life or death. Let people in, keep it positive, then go home and get a good night's sleep. If you hold off drinking until after the meeting, instead of before or during, you're probably doing OK. JosephW

GlenL
(Ohio)

Posts:3622

09/20/2008 5:45 AM
Posted By RobertR1 on 09/19/2008 6:29 PM To all, If e-mails are suspect, what about telephones? Robert, Ohio condo law does specifically allow telephone meetings: 5311.08 (4)(a) A meeting of the board of directors may be held by any method of communication, including electronic or telephonic communication provided that each member of the board can hear, participate, and respond to every other member of the board. (b) In lieu of conducting a meeting, the board of directors may take action with the unanimous written consent of the members of the board. Those written consents shall be filed with the minutes of the meetings of the board.

Your board meeting is not held in the Situation Room of the White House. It's not life or death. Let people in, keep it positive, then go home and get a good night's sleep. If you hold off drinking until after the meeting, instead of before or during, you're probably doing OK. JosephW

RW1

Posts:0

09/20/2008 6:30 AM
Our HOA By-Laws specifically address "Action taken without a meeting". Basically a written instrument signed by all BOD members specifying the "action". It is ratified once ALL BOD members have signed it then it is read into the next BOD meeting. Florida law also allows such "business without a meeting" in HOAs. It can be found in the statutes regulating "Corporations not-for-profit" (or similar named). Then there are so called "emergency meetings" which may be called requiring no notice. Ignorance usualy results in abuse of this clause.

RobertR1
(South Carolina)

Posts:5164

09/20/2008 6:53 AM
Glen and RW. Of course telephone conference are standard fare and accepted. But these procedures require Quorum certification etc. No problem there, in fact we are using a Skype (sic) free service for our televison phone meeting services. The problem as stated seems to be should or does a couple Board members e-mailing each other and doing board business. Or talking on the phone and doing Board BUSINESSS. The "Conducting business without meeting" clause deals with emergency type specific meeting to allow for quick board action dealing with a specific issue. I tink we hashed that out one or two other times. As usual, we all didn't agree completely but close enough.

RW1

Posts:0

09/20/2008 7:22 AM
My comments are in regards to Florida Law only... Negative on the "emergency" type designation for "action without a meeting", etc. There is a very specific and separate paragraph describing "emergency meeting" requirements in the same chapter (Corp. n-f-profit) statutes. That is why I said ignorance usually results in the misuse of these clauses. etc.

DarylF
(Washington)

Posts:140

09/20/2008 7:44 AM
great discussion, thanks everyone. Glen, that article is perfect. I'll be sending that on to my board.

JohnK3
(Pennsylvania)

Posts:967

09/20/2008 9:54 AM
Posted By MaryA1 on 09/19/2008 4:30 PM Posted By JohnK3 on 09/19/2008 10:19 AM If the Board was in a live chat room, one could argue a meeting takes place. But if #1 e-mails #2 with a copy to #3, and #2 replies to #1 & #3, then #3 adds a thought to #1 & #2.............. Come on. Volunteered service is taxing enough. Making the Board's job more difficult is a good starter recipe for the Board taking a hike. John, The AZ Attorney General would view that as a meeting! Everyone is responding with their opinions; if that's not a meeting I don't know what it is. It's not a matter of making the board's job more difficult, it's a matter of being open with the members and giving them an opportunity to attend the meeting and in AZ, at least, the right to speak b/4 the board votes on an issue. BTW, why does your board need to commuicate on a daily/weekly basis with such a small assn? I think you 3 guys need a woman to organize you! LOL Mary, Many a truth is told in jest, eh? Though we are a runt by most HOA standards, we feel the best way to keep the Board ahead of any curves in the road is by keeping the 3 of us up-to-date on anything afoot to avoid surprises, simply share info and allow consensus to germinate (if one is eventually needed). For instance, we have our Maple Tree insurance claim and our Ponds cleanup in the works. I’m point man. I have communications with the insurance co. and contractors re: tree removal and replacement. I have communications with the Ponds firm. I have meetings with them. I have telephone calls and email exchanges with them. I share info about each and every contact with my fellow volunteers. Returning to the email/meetings issue: Our ByLaws require notice to Membership only for the annual meeting and for (properly called) special Membership meetings. Our ByLaws are silent regarding Board meetings of any kind, except for quorum and notice (to Board members) requirements, and voting rules when a financial interest of a Board member may be in play. Notice is waived if all participate. >>>3.15 Action Without Meeting Any action by the Executive Board required or permitted to be taken at any meeting may be taken without meeting if all members of the Board shall individually or collectively consent in writing to such action. Any such written consent shall be filed with the minutes of the proceedings of the Executive Board.<<< Note: We voluntarily provide Membership with the minutes of our Board meetings after we have actually “met” (as in the flesh) as opposed to copying them on every one of our email exchanges. Our HOA is in excellent financial shape and functions well. We have no dues delinquencies, no current Membership gripes to address, healthy reserves. Membership apathy? Yes. But they seem pleased with the way things are going, esp. after we went self-managed. Something’s working nicely in our tiny neighborhood – The Board and its choice of procedures.

CarrieB5
(Florida)

Posts:1

09/20/2008 11:34 AM
We've got a 5 member board and 3 board members regularly e mail e other and chat among themselves. At meetings they all vote as a block. They don't include the other two board members on the e mails nor discussions. We're in FL. Is this legal?

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