Transparency vs privacy for BOD use of a Yahoo group

Our HOA has two Yahoo Groups for electronic discussions – one for the general membership, one for the BOD. The BOD group is used for messages such as “I won’t be able to attend the next meeting.” There is also a file of documents for review – minutes of the last meeting and draft versions of various working documents.

We now have a request to open the Board Group to all HOA members.

Here's what prompted this request. The BOD recently submitted to Association members a proposed amendment to our Covenants to allow for management of the deer herd in our subdivision. The BOD has been communicating the need for such an amendment for the last three years. However, this is a sensitive subject, and now that an actual amendment has been submitted to the membership for approval or rejection, a handful of opponents are posting to the Members’ Group that the Board has been planning a secret agenda and is engaged in an effort to dismantle our Covenants one by one.

The complaint about secrecy is not grounded in fact. Board meetings are open to any HOA member who cares to attend, with the exception of a rare executive session that might be required, for example, to discuss delinquent assessments. Minutes of all board meetings are posted to the Members Group after the minutes are approved.

Still, one result of the current kerfuffle is that members of the opposition are asking that we open up the Yahoo Group used by the BOD. They argue that the BOD functions as a government and needs to follow principles for transparency that we wish government agencies would observe.

I see a the BOD as a hybrid, part small local government, and part the management of a small business (a non-profit corporation). And neither government agencies nor corporations make all details of their deliberations public.

I am not comfortable with providing access to draft documents and informal messages among BOD members to people who are looking for something to take out of context and use as a weapon. But if the BOD refuses this request, it will fuel more complaints about secrecy.

I’m wondering how other boards would handle a request like this.

If you have been using the group to talk about members in an improper manner, I would just trash the whole thing. Your opening a can of worms if you allow member access.

Delete the BOD Yahoo group and tell membership you no longer use it. Don't do it again. Its unlikely people will subpoena Yahoo to get the copies of the deleted messages.

Which is worse: perception of hiding something or the chaos that will follow from showing them everything. Delete it all.

David,

It's going to depend on what is contained within the e-mail.
If the contents consist of when is the best time to hold a meeting, then it wouldn't be a record.
If the contents are discussing a contract or drafts of proposals, then the e-mail would be considered a record.

There is nothing that specifies that e-mails between directors are records. Instead, it's implied (and therefore open for interpretation) that, depending on the contents, e-mails would be considered records. For Example:

§ 13.1-932 specifies "All written communications to members generally within the past three years" are records. E-mail is generally accepted as written communication and Directors are members.

For actions without meetings, § 13.1-865 specifies "For purposes of this section, a written consent and the signing thereof may be accomplished by one or more electronic transmissions," aka e-mail.

Now, realistically, unless a member knows that e-mails exist or are entering into the discovery phase of litigation, it's unlikely that the e-mail will be requested.

Tim

The BOD Group is used mostly for notices. For example, "Here's the provisional agenda for the next meeting. Does anyone have anything to add?" or "The road inspection will be held at .... " Discussion is then held at the meetings themselves.

I don't think there is anything damaging in the email archive. However, the save-the-deer coalition recently published a flier that argued, among other things, that the BOD had violated its own policy when the BOD presented a proposed covenant amendment to the membership for approval or rejection. Instead of discussing their concerns with the BOD and learning the BOD's interpretation of the policy in question, they circulated a claim of a procedural violation. Given this history, my concern is that Team Bambi will be looking for statements they can take out of context in a further attempt to discredit the BOD.

Another concern is that if any of the emails in the archive contain the names of owners whose assessments are delinquent (and I'm not sure about this one way or another), then the Fair Debt Collection Act prohibits this information from being shared outside the BOD.