Email and Board Decisions

Our board had taken up the practice of making board decisions via email. I would like to hear advice, suggestions as to how and if this form of decision making is legal. We have no policy on the use of emails. The emails are not mentioned in our regular board minutes, nor are they part of a permanent record. Any suggestions?

Thank you!

I am on a board of directors and the five of us e-mail back and forth all the time. Running an association smoothly is a day to day responsibility....not just at a monthly board meeting. There is no reason to mention the e-mails at a meeting. We discuss business at the meetings then follow through via e-mails. For example: at a meeting, we may decide to hire a new pool maintenance company. After the meeting we may e-mail to discuss who is going to meet with the new pool employee; who has shopped for a new pool skimmer; what level the pool water needs to be set; where we're filing the contract; etc. Now if the e-mail discussions were to decide something MAJOR (like firing the property manager) without prior discussion at an open board meeting, I'd be very concerned, as it concerns the entire membership.

OK,I am going to respond that email and email voting (between meetings and for valid emergencies) does NOT violate "opening meeting" laws (sunshine laws, etc). First when most if not all of the laws were drafted, email technology was not available, or even if it was, not to the levels that it is in use as a medium for communications regarding business. From my read, the "open meeting" act/laws address the requirement of "notice" of the board's actions on behalf of the association. If I had one owner, or 1,000 present at a "brick and mortar" meeting - they would only observe the meeting (only participating during open forum, residents concern's etc) sections of the meeting agenda. All business of the association is performed by the board - that was the reason membership elected us. Working from email, making and asking questions as it pertains to board/association business does not (IMHO) violate "open meeting" laws - it actually allows the board to work more efficiently and address the needs of the membership/community in an informed manner.

Yes, there are strict interpetations of the "open meeting" law/acts. The same arguments can be made about the Second Amendment (right to keep and bear arms... to a regulated militia...). We have seen how this officially had changed with the growth of our society and the different interpetations. Our laws/acts are living breathing documents which when we moved from an Agricultural society to Information Technology society - it requred that our flexibility (and logical responsibility) to apply in a balanced manner. Sure there will be those that will abuse email and technology - that is why there must be full disclosure to the membership of a boards actions (meeting), and the availability to question (or recall) a board's decisions. Emailing between board members is not a violation of "open meeting" laws, either in spirit or letter of how they were drafted. If we allow our actions to be driven by the "bad seeds" who abuse the systems in place, we have really acquiesced to them.

As I am sure this post will draw the "ere" of those who have been abused by a "renegade board" who did not follow "open meeting" law/act guidelines - I urge you to understand that not every board is out to dupe membership and make poor decisions. As we get more and more involved in the processes of actually governing an association, we start to appreciate the how valuable a tool "technology" can be in helping us perform better.

The practices described of decisions by email are bad practice and may be against the law. They are certainly not in the spirit of open meetings. Regardless, any action taken without a meeting should be included in minutes of the board meetings.

In my state (Michigan), the nonprofit corporation act places strict limitations on decisions by email, or in the broader sense of decisions without a meeting. See the two sections of Michigan law below marked **** for the applicable law. The first concerns attendance by electronic means which requires all board members to hear and be heard by all other board members. The second requires action without a meeting to be by unanimous consent.

In a practical sense, both should be noticed. The attendance by electronic means is a meeting and therefore should be noticed. Action without a meeting requires a resolution to be voted on, which typically would include an explanation. There is no reason that such a resolution and explanation can't be noticed to members at the same time as noticed to the board. Your association's usual and customary means of notice should be used.

Your state may have different legal requirements. Failure to follow the law likely means that any action is invalid, and could result in personal liability for the board members, particularly if the expenditure of association funds is authorized. Adhering to the governing documents is a fiduciary duty of each board member and is serious business.

=========================================
Excerpts from Michigan Nonprofit Corporation Law

450.2521 Regular or special meetings of board; location; notice; waiver; participation by means of communications equipment.
Sec. 521. (1) Regular or special meetings of a board may be held either within or without this state.
(2) A regular meeting may be held with or without notice as prescribed in the bylaws. A special meeting shall be held upon notice as prescribed in the bylaws. Attendance of a director at a meeting constitutes a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, a regular or special meeting need be specified in the notice or waiver of notice of the meeting unless required by the bylaws.
*****(3) Unless otherwise restricted by the articles of incorporation or bylaws, a member of the board or of a committee designated by the board may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this subsection constitutes presence in person at the meeting. History: 1982, Act 162, Eff. Jan. 1, 1983.

450.2525 Taking action without meeting; consent.
*****Sec. 525. Unless otherwise provided by the articles of incorporation or bylaws, action required or permitted to be taken pursuant to authorization voted at a meeting of the board or a committee thereof may be taken without a meeting if, before or after the action, all members of the board or of the committee consent thereto in writing. The written consents shall be filed with the minutes of the proceedings of the board or committee. The consent has the same effect as a vote of the board or committee for all purposes.
History: 1982, Act 162, Eff. Jan. 1, 1983.

The difference is the "notice" and the meaning of "decision"...

Membership is provided "notice" and is allowed to speak on the matters before the association, which require board action.

They are allowed to speak during the appropriate times (as I stated). They are not however allowed to vote - as that is the job of the board.

When questions arise about the provisions of a (hypothetical) road paving project - with three competing bids, the board must be able to communicate with one another in an informed manner, prior to a meeting (with membership). How else can a board make a qualified decision on a matter if they are not properly versed? Do you suggest that we "table" it into the future? How do we get a contractor to meet with a full board to answer all questions - to accommdate all schedules, etc?

Like or not, there are those who have abused the system - which resulted in the need for "open meeting" laws, etc - just as there are those who pick flowers for momma, who damage association property, disregard rules, etc. When we attempt to link words such as "transperancy" and "scrutiny" the implications are negative and the assumptions are that something is being done wrong.

An example of how laws are meant to be living breathing documents, which have the flexibility to adjust - take the Second Amendment ("right to bear arms... regulate, maintain a militia...."). Pre-OK city this had one meaning, and a defined purpose that addressed the needs of society, after OK City it changed, and then morphed again post 9-11. Re-read my post, I stated that email was a useful tool for boards to communicate, I did not state that it was the only (and required) tool for communication.

Whether on day one or day one thousand of a required decision that needs addressing/vote by a board on behalf of an association - the only way issues will be resolved in that the board be able to communicate with one another to reach a understanding (remember understanding is not a consensus, just an informed position on the issue).

I agree secret voting or meetings are clear violations of "open meeting" laws and should be avoided. Information gathering is not.

Part of being on a board, is the willingness to accept the responsibility and power that has been entrusted to you. If an association feels the need to scrutinize every decision of a board - then there is a much deeper problem with the governance, that even a "open meeting" law will not address.

Sorry Robert, but nowhere do I post that a decision is to be made via email (unless it is an emergency situation). In the "road paving" question, I discuss board members gathering information, and then asked how would you expect a decision to be made without it....?

Let me this clear, I abhor the use of email voting - it should only be done in a situation where the decision needed cannot wait until next meeting. Email discussions are a required part of communications in today's world.

Use of emails has become common place with Board members and illustrates the quandry of how to comply with open meeting laws and still allow the Board to accomplish the day to day decisions and duties required. I think the best solution, when the Board has not autorized a MC to do this, is to apply the same logic as when they use a MC. The Board can make decisions at a Board meeting and assign and authorize a Board member, or a committee with a Board member as the Chair, to handle finalizing arrangements and completing each job.

This provides for homeowner input at Board meetings and still accomplish necessary detailed decisions which often have to be made between meetings. I am in favor of handling items by email, I do it all the time. But the Board should not be making key decisions by email unless it is an emergency which can not wait for a few days to call a special Board meeting.

Just as a side comment, I heard a HOA lawyer try to better define when an emergency decision is necessary. She put it as "if you have time to call your HOA lawyer to find out if it is an emergency, then it probably isn't". Depending on how well email is really utilized, that same idea might apply to the use of email for an emergency vote. If you have time to wait for everyone to read and respond to an email, then it probably isn't an emergency. Just a thought to consider.

OK Brad - You disagree with Jadedone, and I'm going to disagree with you. The Board of Directors is there to conduct business according to a pre-determined fixed agenda and the Board members are not there to entertain and interact with the member's. Sure the member's have their open forum, but the members are invited to observe the Board of Directors conducting business and voting on various issues. This is not a forum for members to be conversing with the Board while the Board is trying to conduct business. If you use Roberts Rules of order and conduct the meeting professionally, the residents will not be part of the meeting and they SHOULD NOT be. If I showed up at Fairfax County Board hearings and wanted to intercede Chairman Connelly and Supervisor Frey, they would physically haul me out of the building. I'm sorry, but maybe this works for a 10-20 unit HOA, but we have 350 homes in our HOA and what you propose is not pratical. Homeowners who interupt our meetings are usually misinformed, armed with the wrong information and barking up the wrong tree.

We listen to our homeowners via email, web surveys, and web contact forms. Your right communication is key and that's what our newsletters (email and snail mail) are for. I'm not so sure that it's a good idea to do a lot of business by email, but for emergencies, why not.. you have to do so.

I am glad you don't live in Arizona. You would need to alter your thinking. Arizona's open meeting laws specifically allow interactions to take place in some manner before a vote is taken at the board meeting. The days of the board just ignoring the homeowners are over. Also, if I were a board member, I would thank the homeowners for their insights, even if I don't agree with them.

It is true that the responsibility of the president of the board is to keep the board meeting moving, but not to shut out the homeowners (in Arizona).

Also, in many cities, government agencies (like our city government) operate under different laws so their actions should not be considered as appropriate to the discussion. However, in our city council meetings, residents are allowed to speak within certain constraints before decisions are made.

Brad,

Thanks for your response. It sounds like you have some very civil neighbors, but we are plagued by 3-4 nuts who tend to forget to come to our meetings with decorum, civility, dinity and respect. We do not ignore the residents and do give the plenty of opportunity to give their input since we publish the minutes in advance and there's a ton of info on the web. Whenever there is a major motion, they are mailed the pertainant documents and invited to comment on the web. They are also invited to comment during the open forum, but if we didn't use Roberts rules and stick to the agenda our meetings would go for hours. In the past, it wasn't unusual to have 3 hour meetings. Those days are gone.
Thanks.

Here is the beginning section of the open meeting law in Arizona

"33-1804. Open meetings; exceptions

A. Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the association and board of directors are open to all members of the association or any person designated by a member in writing as the member's representative and all members or designated representatives so desiring shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings. The board may place reasonable time restrictions on those persons speaking during the meeting but shall permit a member or member's designated representative to speak before the board takes formal action on an item under discussion in addition to any other opportunities to speak. The board shall provide for a reasonable number of persons to speak on each side of an issue. Any portion of a meeting may be closed only if that closed portion of the meeting is limited to consideration of one or more of the following:"

Now, you can interpret what is reasonable and how many people can speak, but it clearly allows people to be heard at a board meeting before a vote is taken. Some boards publish an agenda and then have an open forum that is time limited so that homeowners can speak. The contention is that gives the homeowner the time to speak before a decision is made. Others allow the homeowners to speak between the time the motion is seconded and when the vote is taken. There are pros and cons to both methods.

The bottom line, in Arizona, you must provide some mechanism to allow the Homeowner to provide input. If the board does not, then they can be held civily liable for their actions.

We had the 3-4 nuts show up at meetings sucking the life out of the room. Now the 3-4 nuts are on the board and not having board meetings...they are doing everything by email. The main nut is emailing the two directors with a brain telling them that her two side kicks have voted with her and the two with brains have been over-ruled. Who knows if she is making this up since they apparently aren't 'replying to all' when they respond with their vote.

There are four new people on our board as of February without any HOA experience. The remaining board member has one year under his belt but wasn't very active and involved, he is the president. The three nuts have caused the one new person (with a brain) to quit and the president will soon be quitting also.

I don't have a problem with an occasional decision by email but do have a problem with this being the way to make all decisions and run the HOA. I think monthly meetings are important as ideas are shared and discussion takes place. Additionally, homeowners are allowed to be present at the meeting although they cannot speak unless recognized. Any decisions made outside of a board meeting need to be recorded in the meeting minutes.

Mike:

I tried to let your last comment go, but I can't without responding. If you and Jadedone want to go the route of decisions and conversation via email that is your decision and I wish you the best of luck with it. And, I am not aware of any case law related to email decisions, however, I would bet money if I had the time to research it you could find some.

But...my question to you two is why would you want to push that envelope. I agree laws are meant to be interpreted and everyone views them differently. But open meeting laws, at least to me, are pretty self explanatory. Julie's example is probably on the extreme side of things, but it shows what can happen when there are no checks and balances. We are all humans, and like all humans if we do something and get away with it and it makes our life easier, then we will probably do it again. Email is easy, very easy and if no one tells us no then we will continue to do it.

Hopefully your HOA never is involved in a lawsuit because if it is the attorney's will be asking to see any correspondence related to the issue including all emails.

For the record we don't solicit opinions at our meetings, if we are looking for opinions we solicit them in other ways. Actually recently we solicited opinions via email and a flyer about a walking path around our pond. I am sure it will be discussed at future meetings but at that point we won't be looking for opinions, but will listen to them. If you have a good president who can keep the meeting on task then there is no reason you can't have some homeowner dialogue, but when you shut them out it gives the impression of us vs. them which tends to cause issues IMO.

I guess we will agree to disagree, I would also be curious to see case laws, because there has to be a reason that some states are starting to address this issue.

Interesting stuff..I won't post every states rules, but go to http://www.rcfp.org/ogg/index.php

It provides a comprehensive guide to each states take on open meetings and email. Some don't address it, many prohibit it.

This is from Massachusetts from their Attorney General:

"With the advent of computers, it has become more common for persons, both at home and at work, to communicate through electronic mail, or "e-mail." Like private conversations held in person or over the telephone, e-mail conversations among a quorum of members of a governmental body that relate to public business violate the Open Meeting Law, as the public is deprived of the opportunity to attend and monitor the e-mail "meeting." Thus it is a violation to e-mail to a quorum messages that can be considered invitations to reply in any medium, and would amount to deliberation on business that must occur only at proper meetings. It is not a violation to use email to distribute materials, correspondence, agendas or reports so that committee members can prepare individually for upcoming meetings."

Alabama:
"Use of e-mail to circumvent the requirement of open government is a violation of the Alabama Open Meetings Act. Ala. Code § 36-25A-1(a) (Supp. 2005) ("Electronic communications shall not be utilized to circumvent any of the provisions of this chapter.")

From California:

The Brown Act prohibits a legislative body from circumventing the open meeting requirements by using e-mail, telephones, letters or surrogates to conduct serial discussions about the public's business. "[A]ny use of direct communication, personal intermediaries or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited." Cal. Gov't Code § 54952.2(b).

In Stockton Newspapers Inc. v. Redevelopment Agency of the City of Stockton, 171 Cal. App. 3d 95, 99 (1985), the court examined whether members of a city board held a "meeting" under the Brown Act by taking part in a secret telephone poll conducted by a staff attorney about transferring city real estate. Id. at 103. Although the board members never met in the same room, the court concluded that they participated in "a series of one-to-one nonpublic and unnoticed telephone conversations with the agency's attorney for the commonly agreed purpose of collectively deciding to approve" an item of business, which "constitute[d] a 'meeting' at which 'action' was taken in violation of the Brown Act." Id. at 105.

Delaware
An exchange of e-mail between members of a public body discussing public business constitutes a meeting subject to the FOIA laws. Del. Op. Att'y Gen., No. 03-ib11 (May 19, 2003).

BradP,
Thanks for your very informative post.

Robert:

Would agree, however, generally if email has been determined to violate open meeting laws for legislative bodies, chances are very good that will trickle down to HOAs.

Mike:

Agreed..

Rhonda, attached is a form we use to get homeowners permission to provide email notifications. Those owners who provide approval are added to an email group which receives HOA information including notices of meetings and other activities. We also maintain an email group for the Board members of each HOA. This allows distribution of such items as monthly financial reports, Covenant violation information, and other communications which are necessary between meetings.

Also, HOA website discussions are emailed to all registered members unless they have opted out.

Robert, the signed "piece of paper" is required by anyone who is a "smarty-pants"
Yes, email is a great way to provide information to members easily, rapidly, and at much less cost. In homes we manage in the $3/4MM range about 90% of the members have selected email notification.