Conducting business by email

Started by JayL • 6 replies • 2090 views

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JayL (New Jersey)
Posts: 1

Posted:

Is a Board in violation of the NJ Open Public Meetings Act if they conduct Board business by email without public disclosure? Other NJ public officials have been found in violation for doing this by NJ courts. If they are in violation, what is the potential legal penalty?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Are HOA's subject to the same statute as a public body? Or a statute with similar wording?

I don't know about NJ, but in my state the penalty for violating the open meeting law is: nothing.

JM10 (California)
Posts: 503

Posted:

Quote:

Posted By JayL on 06/26/2012 2:19 PM
Is a Board in violation of the NJ Open Public Meetings Act if they conduct Board business by email without public disclosure? Other NJ public officials have been found in violation for doing this by NJ courts. If they are in violation, what is the potential legal penalty?

In California, there is a limit to what can be discussed via email (like time/date of a meeting).

According to California state law, they would be in violation of the Open Meeting Act and as I'm in mediation at this point on that very subject, I can say there is indeed a penalty and it can be sizable, particularly when you include the cost of the attorneys.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Typically membership in HOA's is contingent on owning property governed by the CC&Rs. Therefore, meetings are not considered "public" (although it's not entirely private either).

If you look at the NJ 10:4-8 Definitions you will see that per the definition of "public body" you will see the requirement for the public body to be "empowered as a voting body to perform a public governmental function." Therefore, that law does not apply to HOAs.

Jay,

As you probably know, the CC&Rs (deed restrictions) are considered a civil contract between all owners of the properties that have the same deed restrictions attached. Associations are formed to maintain and/or operate the common area and fulfill any services (trash/recycling, snow removal, street lighting, etc.) required by the CC&Rs. Per the CC&Rs, the Association is also given the authority (in addition to the owners) to enforce the covenants, restrictions and conditions of the deed restrictions (contract). Typically, Associations are incorporated (usually as a nonprofit) as this provides them certain advantages. As a corporation they must comply with corporate laws in addition to any HOA/COA laws.

As you know there are civil laws and criminal laws. Criminal laws are enforced by the State. Civil laws are usually enforced by the individuals involved and they do this through the court system. Since contracts, hoa/coa laws and corporate laws are considered civil laws.

Sure the State corporation commission may fine for not filing the annual report on time. The IRS will certainly go after the Association for failing to file taxes. The District Attorney will prosecute if criminal laws are broken (example embezzlement). However if the Association doesn't comply with the Bylaws or a civil law, it's up to the membership to hold the Board accountable. The easiest way would be to recall the board or not reelect them to the Board. The more expensive option is to go through the court system.

This is why it's imperative that the members remain active in the development and actually take an interest in how the Association is governed. If apathy sets in (and, unfortunately it does), it becomes that much more difficult to change things when issues are discovered.

I know that this isn't really what you wanted to hear.
I hope it helps,

Tim

JeanneK3 (Maryland)
Posts: 562

Posted:

The open meeting laws for government do not apply to associations. Does New Jersey have a body of law governing HOAs and condominium associations? Maryland does and in Maryland, conducting business such as approving contracts by e-mail is in violation of both the MD HOA and Condo Act. The underlying premise is that all association members have the right to hear the discussion behind board decisions and you can only do this if you have open meetings. One way to do this with some board members at remote locations is to have a teleconference speaker at a location accessible to all, announce the location,time and place of the teleconference meeting and have the missing members call into that location. This meets the letter of the law and is as good as e-mail.
Jeanne

DavidW5 (North Carolina)
Posts: 565

Posted:

My understanding is that court rulings on this subject held that unless the emails constituted a simultaneous "conversation" among board members they did not constitute a meeting of the board. This is based on what I recall of an article I read. I don't have any citation. Under this type of ruling, online chats would be considered a meeting.

CarolR11 (Colorado)
Posts: 2,563

Posted:

In CA, email exchanges/discussions among a quorum of the board about most kinds of HOA business is defined as a meeting. But NJ may be entirely different.

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