Emails between board members

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.

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.

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.

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.

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

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.

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.

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!!

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.

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?

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.

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.

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.

great discussion, thanks everyone.

Glen, that article is perfect. I'll be sending that on to my board.

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?

Carrie,

This is a tough position to be in.

As discussed in other threads, sometimes the answers to problems turns out to be a long process. In your case, if three members are voting as a block to gain majority, that is sort of what you are shooting for. But I understand what you are saying. We just went through some long termed non-productive management by BOD and finally now have the majority and with next election, hopefully will have a united Board.
Direct to your question; as I would see it, if your support is with the two and against the three, work to get the majority. I doubt you will find anything in any requirements that would forbid board members from taking to each other and certainly how the vote is not to be challenged. You could present your concerns to the Board and ask that they refrain from their conduct as it appears detrimental to the business of the Board. Maybe a petition sign by members expressing their concern might work.

Robert,

The key to it is whether or not a quorum of the board is meeting. If the email goes out to all the members and they respond then it is construed to be a meeting. One board member speaking to a committee is not a board meeting. But that committee meeting must also be noticed to be in compliance with an open meeting law which states ALL meetings of the assn. In 2005 the AG of AZ issued an opinion regarding the public body open meeting law and email communications. Now I know this particular OML does not apply to HOAs, but I feel certain he would issue the same opinion regarding the HOA OML. Here's what his conclusion to the 11 page opinion was:

"Email communications among a quorum of the board are subject to the same restrictions that apply to all other forms of communications among a quorum of the board. Emails exchanged among a quorum of a board that involve discussions, deliberations or taking legal action on matters that may reasonable be expected to come before the board constitute a meeting rhrough technological means. While some unilateral email communications from a board member to a quorum would not violate the OML, a board member may not propose legal action in an email. Finally, a quorum of the board cannot use email as a device to circumvent the requirements in the OML."

I strongly disagree with your beliefs concerning a court ruling, simply because proof of harm has nothing to do with the reasons for having the OML, which is to ". . . enhance homeowners rights by allowing them to attend board meetings. . . and to open the conduct of business to public scrutiny and prohibit decision-making in secret." (quoted material taken from an AG open meeting law opinion.) BTW it would be a civil offense to violate the open meeting law. And, frankly, I can't see how conducting business by email is any different than conducting business in a closed session, especially if it is business that should be conducted in an open session. In neither instance is the member allowed to be a party to the business being conducted -- a direct violation of any open meeting law.

Carrie,

I hope Donna will weigh in on this; but I do believe the actions of these 3 board members is a violation of FL HOA law. Three members of a 5-member board constitutes a quorum which is a meeting. I don't know how the FL law reads, but in AZ email comm. between a quorum of the board is a violation of the OML. It doesn't matter whether any action was taken or not the violation is that a quorum of the board constitutes a meeting and all meetings must be noticed. Check out your FL HOA statutes.

Carrie,

Mary has told you the correct response. The Board doing business by e-mail is against Florida Statutes 720:303-(2) BOARD MEETINGS. All Board meetings must be open to the membership, posted 48 hours prior and include an agenda.

The sad news is that being that there are 3 of them, they can lie and say that they are not doing business, voting or deciding on association business. If you sincerely want to address this, write a letter stateing what you told us and read it at the open meeting. Have the 5th member also back you up. They will have to address this in front of the membership. Don't be afraid, just call them on it and say that this must cease because there are 5 BODs, not just these 3.

Mary,

My question for you has to do with exceptions regarding confidentiality
of information and issues that take place during the exec. session.
We have a rogue board member that produced $100,000.00 to demonstrare how much he is willing to spend to sue the board.
He has thus far refused to specify the exact charges, and says that he will not proceed as long as two current members resign.
He has expressed the desire to break this community financially referencing cosy to rach homeowner.
He has historically expressed his desire for more power, and has stated that the problem can be solved as long as his demands are met.
I sought legal advice that said that the cloak of confientiality doe not apply when there is threat of a lawsuit.

We would like to inform the community of his intention before the the electiond next month, bit our management company prefers no action
shoild be taken to provide the community with nothing but the facts as presented by the member practicing extortion.
Is it true that if there id a threat of lawsuit, that the confidentiality aspect does not apply to the specific issue of suiy?

Hopinh you can give us some direction
Does the fact that the threat of lawsuit remove the confidentiality
of that part of the minuted?

Many thanks in advance,
AZ HOA board member

J M Delany

Regarding meetings and email, my HOA (and probably many others) have specific provisions in the Bylaws for taking action without a meeting and for meeting via telephone.

In our case (and probably many others), action taken without a meeting, but written (including electronic) instruments, require consent by all Directors. (We are informal, and take that to mean participation or non-objection by all Directors.) We report such actions at the next meeting and that's how they get in the minutes. I think this is roughly consistent with laws in other states that give each Director a veto on e-mail decisions.

If action by email is "without a meeting" then it's not a meeting, but that's just semantics. The principles are that any Director has (or should have) the power to insist that an action requires a meeting with live discussion, and generally doing things by email must hide it from the Membership or exclude some Directors from fully participating in the process.

(For us, participating in a meeting by telephone is permitted, as long as it complies with state corporation laws and at least two Directors are present at a physical meeting location.)

I would support another principle -- that any Directors can discuss anything they like in any private context they like, just like anything else, and can come to a consensus as people tend to do; but they must still take action at a lawful, noticed meeting (or by email, as permitted) and must open it to discussion before voting. They can't just act as if the decision was already made, certainly not as if it need not be discussed or recorded, and they can't just say they've decided and vote without summarizing the discussion and reasons and leaving that open to further discussion. This principle is not sufficient to the laws of AZ and a few other states, but I disagree with laws that say people can't talk about things.

=-=-=

JD,

If he is threatening legal action, I would both consult an attorney and also issue a notice of claim to your D&O insurance carrier. I would also call your insurance agency and ask if you have coverage if a Director sues the HOA, although I think you would -- he would probably have to sue in his capacity as a homeowner/member, not as the HOA BoD.

He is probably all bluster, but this has the potential to turn into a nasty and expensive legal battle (especially if he has complaints of any technical merit), so you should give your insurer an opportunity to get involved as early as possible to mitigate trouble and expense.

What he is doing -- "I have grievances that I don't want to discuss or allow you to address directly, but get rid of these two guys I don't like and all will be well" is purely extortion. For one, you cannot respond to this type of threat -- you can address grievances, but you cannot allow one individual to exert excessive control over the constitution of your BoD. That would infringe on the rights of all the other members. Also, if you give in to someone like this, he will probably have additional demands after he gets his way, and he will practically own the HOA until someone stands up to him.

Your choices are to reason with him or to stand up to him (which may amount to calling his bluff.

Thanks,
Michael K

Mary, this makes sense to me with respect to conversations in person or even by phone. People participate concurrently in conversations, so they are "present". How is someone who participates in an email exchange "present". Consider this message forum: I was not present when you wrote your post -- I came along later, read it, and am responding, although not in your presence. We are participating in a discussion, just as if we sent letters by USPS, but I wouldn't call this a meeting (even if you and I were members of a deliberative body wherein a quorum could be constituted by two).

I agree with you to the extent that taking action without an open meeting excludes those not present. I think we can both agree that holds, for action taken via written or electronic communication -- whether we say that is without a meeting or in a closed meeting via email.

I think we disagree about whether the Directors should be permitted to discuss matters (but take no action) if there may be a quorum present when no meeting was scheduled or noticed. Frankly, such a restriction could be easily avoided by simply Directors simply calling each other one at a time (similar to an email chain with limited distribution of each message) instead of conferring together. A spontaneous discussion would be illegal, but a planned, rolling discussion would be legal. I prefer that people be allowed to talk about whatever they like, but action must be discussed and taken at proper, open meetings -- regardless of whether it is also discussed at other times.

I understand the law in Arizona does not conform to my preference.

KW,

IMO, as long as a majority of the board (i.e. a quorum) is involved in the email communication then it is an official record. In AZ this would be considered a meeting even though the board members are not physically gathered together in one location.

Maybe KW means, how does it get in to the files where the HOA keeps its official records (or tries to).

Maybe Mary means, it's an official record when it is sent, whether it gets saved with other official records or not. One could demand such emails be produced, as with other official records. One could hold the HOA liable if they are deleted, as with HOA records.

In our HOA, we Directors use Gmail addresses based on our titles, so that the emails are all saved on Google servers, in hopes that our personal computers will not be subpoenaed if someone wants to see our HOA-related email messages.

I am meeting with an HOA attorney this afternoon, and two other board members
want to go with me.
Three of us meeting for this discussion would represent a quorum.
How do we approach this situation of open meeting law when it is another BoD
that is threatening a lawsuit against us?
I'm sure it is bluster, like success through intimidation, but I would still
like to be educated from the legal standpoint as to just what our options are
should the board member in question actually decide to proceed and file suit.

Thanks
JD
AZ