BOD using email

Started by DonA2 • 42 replies • 2060 views

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DonA2 (Arizona)
Posts: 170

Posted:

Is it appropriate for the BOD to use email to discuss business issues? I am getting conflicting answers. Nothing is ever voted on by email and any business that needs voted on is then reviewed at the meeting. Just curious how others view and use email.

TimB4 (Tennessee)
Posts: 21,059

Posted:

In States that have open meeting statutes for HOAs, this is often an issue. There are conflicting answers because depending on the situation the answer is yes or no.

An issue that can not wait until the next scheduled meeting can typically be decided as an action without meeting (AWM). An AWM is typically authorized in corporate statutes. Example: Storm Cleanup.

An issue that can wait until the next scheduled meeting should wait and it would be inappropriate to make a decision on it via e-mail.

Issues that have a lot of background material (contracts for example) are typically sent to Board members via e-mail for review. Sometimes, some clarifying Q&A occurs as well. However, general discussion (is this a good deal or not) and actual decisions should wait until the board meeting.

E-mail should not be used for the sole purpose of getting around open meeting laws. However, as pointed out, there are issues that e-mail can enhance the actual meeting (by giving members time to review material, formulate questions, etc.) and provide a better service to an Association.

KerryL1 (California)
Posts: 14,550

Posted:

Along with Tim, it also depends a lot on your open mtg. laws in AZ. If Larry checks in, he'll know.

AZ is similar to CA, but not the same. In CA, for instance, a quorum of directors may not DISCUSS any upcoming board biz in a series of emails.

In our CA HOA, we get our "background materials" several days ahead of an open meeting and no discussion of them among a quorum of directors is permitted in person or online outside of a meeting.

Also in CA as in VA, in an emergency, decisions can be made online but there must be consensus among all 7 of us. It's just as easy to physically meet when only a quorum is needed to decide how to proceed.

DonA2 (Arizona)
Posts: 170

Posted:

It just seems like nothing would get done. I have no problem not using email, but one meeting a month won't cut it. Two, maybe three meetings a month, at least for awhile, would have to be the norm.

And how would anyone know what materials would need to be gathered for the meeting?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By DonA2 on 10/19/2015 10:50 AM

And how would anyone know what materials would need to be gathered for the meeting?

That comes from the previous meeting.

A typical board meeting does the following:

Approves the minutes from the previous meeting.
Documents what others have done (Officer reports)
Updates unfinished issues of the previous meeting/s (task completed, waiting on bids, etc.)
Identifies new issues that were brought to the Board between meetings. (open forum and new business that is due and needs to be worked on)

Every Association should have some sort of Association Calendar.
One that lists when meetings are held, contracts are due, scheduled maintenance/repairs are due and administrative tasks (taxes due, notice requirments, when to schedule meeting space for annual meeting, etc.). This calendar should be the basis for preparing the agenda for Board meetings and identifies what needs to be done ahead of time (example: Contract ends in July. February RFP's should be drafted and approved by the Board. Mailed in March, Collected and prepared for a meeting in May so a decision can be made in June on who to award the new contract to).

My Association has 3 calenders:
Maintenance/Repair (based on the Reserve Study).
Financial (based on past history and various governmental time lines - example: 1099-misc due end of Feb).
Administrative (based on CC&Rs, Statutes, etc.) This is things like meeting notices, when minutes are due, etc.

The President has a master calendar, which is based on the other three, so the agenda can be set and they are aware of what needs to be done and a reminder can be sent.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By DonA2 on 10/19/2015 10:50 AM
It just seems like nothing would get done. I have no problem not using email, but one meeting a month won't cut it. Two, maybe three meetings a month, at least for awhile, would have to be the norm.

Our meetings last about 1.5 hours, meeting monthly.

When an issue gets too bogged down, we may hold a special meeting to discuss that one issue (reserve study, governing document changes, etc.).

Depending on the Board, we have held meetings every month or skipped a month every now and then (January and July seem to be months that are traditionally skipped).

You need to empower your Officers and your Committees to make this work.

For example, the Board will approve the Maintenance Officer to spend $x,xxx on tree issues. The Maintenance Officer reports what work on trees is completed or pending but doesn't need to seek approval to prune every tree (as that has already been given).

For example, the architectural committee has authority to approve or disapprove exterior changes. They make a report to the Board each month (typically written) identifying what the committee approved or didn't approve. However, there is no discussion on the report. The Board only gets involved if a member appeals a decision of the committee.

Officers are authorized to purchase envelopes, stamps and have printing done without prior approval. Receipts are needed to be reimbursed but why bog down the system to approve stamps for mailing (unless there are questions on the amount).

The newsletter editor writes the newsletter. Board members and committee members are invited to submit articles but the editor has the authority to write articles and publish the newsletter. If a board member is that concerned about what is in the newsletter, then they are welcomed to work on it or be the editor.

DonA2 (Arizona)
Posts: 170

Posted:

We are a three person board. No committees. Tried a few committees and they fell apart within a month.

Our previous Board president was removed by recall so everyone on the board is new (less than a year). So we're trying to figure things out on the fly.

KerryL1 (California)
Posts: 14,550

Posted:

What size is your HOA, Don? Detached homes, or? What are your amenities, e.g, pool, tot lot, or??

What officers are required? Prez, VP & sec'y/treasurer, or what?

It could be you need more meetings a month since you're all new, but Tim's calendars can help you focus. Like his self-managed HOA, our board meets once a month for 1-1/2 - 2hours with a couple of special open meetings a year, generally on the budget and reserves.

If you don't have a property mgr., your bylaws will help you decide on which officer does what tasks.

In addition to that, the three of you at an open meeting can decide how to divvy up the work. Or, the prez can be in charge of day to day activities of your HOA (probably) per your bylaws.

We're a really complicated gated urban twin tower high rise set-up with 200+ residential condos & 2 commercial lots broken up into several suites. So we have a property mgr. & a mgr. asst. who oversee the staff of 15 or so plus the vendors who come on site, e.g., Pool guy, pest control, landscapers, gym guy.)

But our bylaws would be easy to understand and adhere to if we had no PM and a board of three.

Go to CAI's (Community Associations Institute [I think]) web sites and see if they have any free materials for board members to learn.

RichardP13 (California)
Posts: 3,868

Posted:

Don

Your original question was whether or not it would be appropriate for the Board to discuss business issues. In California, and I would imagine a handful of others states now prohibit Action Without Meeting, for very good reasons. What was happening was decisions were being taken and nothing was put in writing as Corporation Code required.

My opinion will conflict with others here, but I have opinions from attorneys backing my reasoning.

A meeting is defined as a quorum of directors AT THE SAME TIME AND PLACE to hear, discuss or deliberate upon any item....No one can convince me emails fall under the same time and place. Have you questions asked and answered by the experts or the ones making a proposal BEFOREHAND, so the BOARD IS PREPARED to have a informed discussion and make a decision at the proper place.

If we are left to the interpretation that "one size fits all" nothing will get done. One person interpretation may work for a 15 unit complex, but may not work for a twin tower high rise with no onsite property manager and staff.

Bottom-line, all decisions and/or actions MUST ultimately be decided and voted on in a properly noticed Board meeting, whether open session or executive session.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Richard,

My understanding is that CA still allows action without meetings but only for emergencies (which is really the only time they should be used). If my understanding is correct, that is different then being prohibited.

I understand it's easier (and possibly best) to say it's prohibited and encourage the Board to call an emergency meeting vs having an action without meeting. As I said, my understanding is that such action is not prohibited, it's simply greatly limited in CA.

See:

CA Civil Code §4910:

4910. (a) The board shall not take action on any item of business
outside of a board meeting.
(b) (1) Notwithstanding Section 7211 of the Corporations Code, the
board shall not conduct a meeting via a series of electronic
transmissions, including, but not limited to, electronic mail, except
as specified in paragraph (2).
(2) Electronic transmissions may be used as a method of conducting
an emergency board meeting if all directors, individually or
collectively, consent in writing to that action, and if the written
consent or consents are filed with the minutes of the board meeting.
These written consents may be transmitted electronically.

CA Corporations Code §7211 (b)

CA Civil Code §4923 :

4923. An emergency board meeting may be called by the president of
the association, or by any two directors other than the president, if
there are circumstances that could not have been reasonably foreseen
which require immediate attention and possible action by the board,
and which of necessity make it impracticable to provide notice as
required by Section 4920.

RichardP13 (California)
Posts: 3,868

Posted:

I would just call it an emergency meeting.

KerryL1 (California)
Posts: 14,550

Posted:

Right, as I noted above, Tim, we in CA may take action without a meeting under the conditions you cite in CA. code 4910 (b), e.g., in writing by all directors, etc. I don't know why Richard says we may not.

While obvious that a quorum of directors may not be at the same time & in the place while communicating by email, another of your cites says that we may not "conduct" a meeting in that way.

CCC 4910(a) "... the
board shall not conduct a meeting via a series of electronic
transmissions, including, but not limited to, electronic mail..."

CA Civ. Code also says: A "meeting" is defined as:
A congregation of a majority of the members of the board at the same time and place to hear, discuss, or deliberate upon any item of business that is within the authority of the board. (Civ. Code §4090(a).)

Our HOA's previous & current HOA counsel both have stated that a quorum of directors may not hear, discuss, deliberate upcoming a business matters outside of a duly noticed meeting. Our MC's attorney says the same thing. All go on to say we also may not daisy chain, where one passes discussion on to another who passes it n to another, etc., till a quorum is contacted. Obviously also not in the same place at the same time. But also obviously in violation of the sprit of the Open Meeting Act, which is to keep boards in CA from discussion, dilating and making decisions behind close doors.

Owners are to be privy to the deliberative process, not just the vote!

Our board does get materials in advance. to review in our board packet, so they contain expert's opinion's proposals, etc.

I'd say w'eve had perhaps 2 emergency meetings in the past 3 years both involving mechanical breakdowns that needed immediate attention.

One way to get around the difficulties the Open Meeting Act has for small boards is:

"Delegated Authority. Administrative and oversight tasks can still be handled via emails if delegated to a person or persons such as the president ... Once delegated, the president ... can make decisions and retain the right of email consultation with directors. Delegated business is specifically exempted:

If the president has the authority to make decisions, he/she can ask for input from other directors before doing so without violating the Open Meeting Act. See Davis-stirling.com, which is compiled by CA HOA attorneys.

Now Richard often doesns't agree with them.

But the main point is, what is AZ law???

And I think we could help more, don, if we knew more about your HOA.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 10/19/2015 3:26 PM
Right, as I noted above, Tim, we in CA may take action without a meeting under the conditions you cite in CA. code 4910 (b), e.g., in writing by all directors, etc. I don't know why Richard says we may not.

While obvious that a quorum of directors may not be at the same time & in the place while communicating by email, another of your cites says that we may not "conduct" a meeting in that way.

CCC 4910(a) "... the
board shall not conduct a meeting via a series of electronic
transmissions, including, but not limited to, electronic mail..."

CA Civ. Code also says: A "meeting" is defined as:
A congregation of a majority of the members of the board at the same time and place to hear, discuss, or deliberate upon any item of business that is within the authority of the board. (Civ. Code §4090(a).)

Our HOA's previous & current HOA counsel both have stated that a quorum of directors may not hear, discuss, deliberate upcoming a business matters outside of a duly noticed meeting. Our MC's attorney says the same thing. All go on to say we also may not daisy chain, where one passes discussion on to another who passes it n to another, etc., till a quorum is contacted. Obviously also not in the same place at the same time. But also obviously in violation of the sprit of the Open Meeting Act, which is to keep boards in CA from discussion, dilating and making decisions behind close doors.

Owners are to be privy to the deliberative process, not just the vote!

Our board does get materials in advance. to review in our board packet, so they contain expert's opinion's proposals, etc.

I'd say w'eve had perhaps 2 emergency meetings in the past 3 years both involving mechanical breakdowns that needed immediate attention.

One way to get around the difficulties the Open Meeting Act has for small boards is:

"Delegated Authority. Administrative and oversight tasks can still be handled via emails if delegated to a person or persons such as the president ... Once delegated, the president ... can make decisions and retain the right of email consultation with directors. Delegated business is specifically exempted:

If the president has the authority to make decisions, he/she can ask for input from other directors before doing so without violating the Open Meeting Act. See Davis-stirling.com, which is compiled by CA HOA attorneys.

Now Richard often doesns't agree with them.

But the main point is, what is AZ law???

And I think we could help more, don, if we knew more about your HOA.

Kerry

For the record, my discussion of Action Without Meeting is what is in almost all Bylaws throughout the U.S. Emergency meetings are just that, emergency meetings.

An email is NOT a meeting of the directors at the same time AND place. If you believe that I still have that bridge in Arizona I will sell you. I have discussions with a number of attorneys throughout California and it's a wonder that two can agree on what today is.

I agree with about 95% of what the website Davis-Stirling.com puts out. But, it is not compiled by independent CA HOA attorneys, but run by a law firm that purports to specializing in HOA law. But what what is posted by them are opinions and not all law firms have the same interpretation of the statues.

KerryL1 (California)
Posts: 14,550

Posted:

As I wrote, Richard, not only does the Davis-stirling site agree with me, so do our current & past HOA attorneys and our MC Co's attorney and the CEO of our MC who's been in the business for many years.

Some of what I cited above is the actual legislation; some is the opinion of the D-S site.

Email among a majority of directors is most likely not at the the same time & place. No disagreement!! Nor is daisy chaining, nor is the wheel and cog approach to try to get around discussions & deliberations at duly noticed open meetings. The point is the spirit of the legislation is to permit H/Os in CA to see and hear deliberations, discussions & votes.

RichardP13 (California)
Posts: 3,868

Posted:

Kerry

As you wrote, a meeting is a congregation of the Board at the same time and place. If an email is not at the same time and place, how could an email be considered a meeting. I had an attorney say a loophole could be text messaging.

I am not in disagreement with you about what should be discussed at a meeting. I changed a board at my complex because everything was done in secret.

I am working with CLAC to help clarify the language that was put into effect in 2012.

JonD1
Posts: 2,350

Posted:

Quote:

Don I would suggest you research your state laws. Hopefully, your laws differ from those in California because in my opinion they can prove counter productive.

Could you imagine imposing a law on private coorations engaged in business that their board members could not use e-mail with which to communicate.
2015 and as you suggest lots can go on the other 30 days of the month between meetings. But more important to protect the rights of the 3-4 unit owners in attendance at each monthly meeting than help make the process of managing your property more efficiently.

I like to keep our monthly meetings as short as possible. If I can provide information, details and history beforehand or between meetings the easier for all.
To me common sense would suggest communication should be made as easy as possible. Especially for parties volunteering their time who might wish to move things along. Thankfully, here we don't operate under such restrictions. What Arizona requires will set the standards under which you must operate. Good luck.

RichardP13 (California)
Posts: 3,868

Posted:

JonD

I couldn't agree more. But HOA's are private corporations. More laws and regulations only make things worst. Instead of enforcing what's on the books, you create more to muddy the waters. But then, what else would these people do with their time.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I would define "Business". If it's to discuss and share information to make an informed decision, then have no issue. If there are actual decisions and sign offs then there is an issue. I say final decisions should be made at a meeting. However, I think the board should also be a well informed board who has shared the same information. Plus if there is debate, then it can be presented at the meeting. Otherwise, I believe email would allow the board to get on the same page to make their final vote/decisions at a meeting. Otherwise, it could take months to change a light bulb...

Former HOA President

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By DonA2 on 10/19/2015 8:22 AM
Is it appropriate for the BOD to use email to discuss business issues? I am getting conflicting answers. Nothing is ever voted on by email and any business that needs voted on is then reviewed at the meeting. Just curious how others view and use email.

Don,

The AZ open meeting law for HOA's does not prohibit emails but it does discourage it. I am not aware of any AZ case law on the subject but CA courts have held that since the purpose of the act is to keep deliberations open to view that information that the board members use to make their decisions should also be presented only at the open meeting.

I think your real problem is indicated by the fact that you think one meeting a month is not sufficient. That tells me that your board is trying to make every little decision instead of sticking to the policy matters and budgeting. You mentioned having had committees in the past but that is exactly the wrong direction as you are trying to solve too much committee decision-making with more committee decision-making.

Your board should appoint an officer to run things on a day-to-day basis. AZ law does not require any set number of officers nor does it require any specific titles. Delegate the day-to-day stuff to this officer and resist the idea of looking over his shoulder.

One of my peeves when I was on my board was that we had budgeted a certain amount for road maintenance and appointed a VP to manage the job but every month he would submit a request that we allow him to spend the money we already approved. It was not necessary and I do not recall a time where anyone objected because he knew what he was doing and we did not. Seeking an OK to spend money that was already in the budget was just a time-waster.

DaveD3 (Michigan)
Posts: 796

Posted:

What do your governing documents say?

Ours explicitly state that any business normally conducted at a meeting can be done without a meeting, also stipulating conditions for such. We routinely conduct normal business by email, but read and decisions into the minutes of the next meeting.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By DaveD3 on 10/20/2015 4:34 AM
What do your governing documents say?

Ours explicitly state that any business normally conducted at a meeting can be done without a meeting, also stipulating conditions for such. We routinely conduct normal business by email, but read and decisions into the minutes of the next meeting.

In this case what the governing documents say is less important than Arizona law, which requires open meetings except for emergencies.

RichardP13 (California)
Posts: 3,868

Posted:

Don,

At the end of the day, how you as an individual or the board as a collective group are viewed by the community is the most important thing.

If you discuss, deliberate and vote at a open meeting, if you have open books, treat the residents with respect, etc, you should be treated with the same dignity and respect.

Larry brought up an very important point. Too many board rehash, meeting after meeting, items ALREADY approved by the budget. You spend a month putting together and then approving a budget and then spending countless hours voting on things already approved.

RichardP13 (California)
Posts: 3,868

Posted:

Kerry

Is "email" considered being at the "same place and time"?

If the answer is no, IMHO, you don't need an attorney interpreting the new rules, you just did.

KerryL1 (California)
Posts: 14,550

Posted:

There you go, Don! Larry's post is to the point and gives you good advice.

I suggested above, Don, that delegation is key to needing fewer meetings. This does mean the three directors, in Don's case, need to trust one another. And there should certainly be NO need for a meeting purchase a light bulb! Your bylaws, don, should be a good guide concerning who should do what tasks. If you're a small HOA with few amenities, I can't see how you'd need many meetings. Perhaps you can give us examples of the topics you typically deal with in open meetings.

Richard, for gawd' sake, please re-read Larry's quote: "...CA courts have held that since the purpose of the [Open Meeting] act is to keep deliberations open to view, that information that the board members use to make their decisions should also be presented only at the open meeting."

I haven't seen these court rulings, but they make complete sense in CA!

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 10/20/2015 10:47 AM
There you go, Don! Larry's post is to the point and gives you good advice.

I suggested above, Don, that delegation is key to needing fewer meetings. This does mean the three directors, in Don's case, need to trust one another. And there should certainly be NO need for a meeting purchase a light bulb! Your bylaws, don, should be a good guide concerning who should do what tasks. If you're a small HOA with few amenities, I can't see how you'd need many meetings. Perhaps you can give us examples of the topics you typically deal with in open meetings.

Richard, for gawd' sake, please re-read Larry's quote: "...CA courts have held that since the purpose of the [Open Meeting] act is to keep deliberations open to view, that information that the board members use to make their decisions should also be presented only at the open meeting."

I haven't seen these court rulings, but they make complete sense in CA!

There are no court cases that deal with this email issue.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RichardP13 on 10/20/2015 11:11 AM
There are no court cases that deal with this email issue.

The case I mentioned did not deal with email specifically. I think I found it on the Davis-Stirling website but I would be hard-pressed to find it again.

BTW, Davis-Stirling says directors are not supposed to meet by email per Civ. Code §4910(b) beginning January 1, 2012. That has no application in Arizona, however.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By LarryB13 on 10/20/2015 1:43 PM

Posted By RichardP13 on 10/20/2015 11:11 AM
There are no court cases that deal with this email issue.

Larry

There is confusion on what you posted and actual Civil Code. What you posted comes from a law firm is in the HOA business and maintains a website called Davis-Stirling.com. It is NOT affiliated with the Davis-Stirling Act with the exception that their new partner is Larry Stirling who replaced Gary Kessler. It is just an opinion.

The key phrases are what is a meeting, and is email communication at the SAME time and SAME place. The answer is NO.

The problem in California is that we have two lobby's working against each other, CAI and ECHO. It seems they like tripping over each other and now we have conflicts in Corporation Code and Civil Code.

Again, I emphasis, that the Davis-Stirling. com website is great website offering free legal advise, but as we all know, no two attorney opinions are the same.

An example, as we are discussing meetings, the consensus is that if the Bylaws don't state otherwise, the minimum number of Board meetings held annually is quarterly? Why? Davis-Stirling.com says to REVIEW the financials. In California, financials do not have to be approved by the Board, only reviewed. WHY does it take a meeting to review something? Approving would be an actionable item, reviewing, no.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By RichardP13 on 10/20/2015 2:16 PM
The Davis-Stirling.com website is great website offering free legal advice, but as we all know, no two attorney opinions are the same.

Richard,

I learned long ago to take everything on the Davis-Stirling.com website ("The Website") with a grain of salt and a chaser of skepticism.

Example One:
In the case of Francis T. v. Village Green, the court wrote that "the Association is, for all practical purposes, the Project's 'landlord.'" This was clearly written within the context of whether a condo association has a duty to provide security to its members and visitors. The Website, however, misquoted this statement and used it out-of-context to argue in another situation that a condo association is bound by landlord-tenant laws because, they said, an association is for all practical purposes a landlord. (I just tried to find that discussion on The Website and failed, so it may have been removed.)

Example Two:
The Website said (and still does) that an attorney may not attend a board meeting either with or in place of a member. They used to cite a case where a member sued when his lawyer was barred from attending. The case, however, did not address that issue; instead it upheld the denial of a preliminary injunction to the member because he could not show that he would suffer irreversible harm if the injunction was not granted. (I was not able to find this case, either, when I looked.)

I suspect that much of what is written on The Website is the work of junior attorneys, paralegals, and clerical employees. I am somewhat relieved that I was not able to find either the two tidbits of mis-advice from above but I remain wary of what else may be lurking there.

RichardP13 (California)
Posts: 3,868

Posted:

Larry

Example One got me thinking about the validity of the opinions offered on the website some time ago. For the record, Adams Kessler, now Adams Stirling represents my former community.

Ours had to do with removing water meters, effectively shutting off water to seriously delinquent homeowners who hadn't paid their water bill. We are a sub metered community and have a third party read and bill homeowners individually. Our CCRs and Cost Sharing Agreement allowed such action by the association.

There is no case law that specifically states an association under these conditions couldn't take the actions their governing docs stated they could. The attorneys pointed to this specific case law. First, no association wants to be considered a "landlord". There are too many bad implications that go with that term. Second, the case in question, the Plaintiff is the one that turned off her electricity, NOT the association. Third, and more importantly, the association next to us, who shares our water and has the same governing docs has been successfully doing it for 13 years.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Richard,

Thanks for reminding where I saw the nonsense about being subject to landlord-tenant laws. Their advice can be found at
http://www.davis-stirling.com/MainIndex/TurningOffWater/tabid/2610/Default.aspx#axzz3p8tuWwKN

The Website, justifying its position that an association is subject to all landlord-tenant laws, purports that, "California's Supreme Court has determined that associations are 'for all practical purposes' a landlord. (Francis T v. Village Green.)"

But the cited case actually says, "the Association is, for all practical purposes, the Project's 'landlord.' And traditional tort principles impose on landlords, no less than on homeowner associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents' safety in those areas under their control."

I see a big difference between being subject to landlord-tenant laws and having a duty to keep residents safe in the common areas.

I also found the discussion about the lawyers at http://www.davis-stirling.com/LawyersatBoardMeetings/tabid/2910/Default.aspx#axzz3p8tuWwKN

This cites the case of SB Liberty v. Isla Verde Association, which is the case I referred to earlier where attorney attendance was an underlying issue but the court evaded the issue and focused instead on whether the plaintiff was entitled to a preliminary injunction without alleging any immediate damage.

DonA2 (Arizona)
Posts: 170

Posted:

Thanks for all the replies and info.

We don't rehash items meeting to meeting, but new business arises all the time. And old business still needs to be finished.

We very seldom vote on issues via email and on the rare occasion we do, it must be unanimous and the emails with the vote become part of the meeting minutes. And issues discussed by email are always discussed in open meetings as well.

And I said if we didn't discuss things via email, one meeting a month doesn't seem like it would be enough. Right now, one meeting a month is plenty.

We will gladly provide copies of any email discussions to any member who requests it. We are not trying to hide anything, just trying to get things done with Board members in different locations.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I love living in SC. We pretty well can run our meetings any way we want, Phone, Email, face to face. It makes it so easy to operate.

Even in states where tighter/more openness is required, anyone that thinks there is not "back channel" chatting (no matter the media) going on is at best naive.

KerryL1 (California)
Posts: 14,550

Posted:

Richard, three of us posters have posted: CA Civ. code 4910(a) "... the
board shall not conduct a meeting via a series of electronic
transmissions, including, but not limited to, electronic mail..."

I'm still very curious about your HOA, Don , and why you need so many meetings. Hope you don't mind if I ask again. What size is your HOA, Don? Detached homes, or? What are your amenities, e.g, pool, tot lot, or??

What officers are required? Prez, VP & sec'y/treasurer, or what?

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 10/21/2015 1:36 PM
Richard, three of us posters have posted: CA Civ. code 4910(a) "... the
board shall not conduct a meeting via a series of electronic
transmissions, including, but not limited to, electronic mail..."

One thing I do know is the law and how to interpret it. The definition of a meeting is defined in Corporation Code as a congregation of a majority of directors, "at the same time and place". An email cannot be conducted at the same time and most likely at the same place. If you look at the title of §4910 it is "Board Action Outside of Meeting Prohibited". How is a discussion construed as taking action?

More importantly, a meeting MUST be noticed.

Not all HOA's are as fortunate to have the same setup and organization as yours does. You can't always put something in a "one size fits all" box.

I have had directors show up at Board meeting with a board packet, delivered a week before, UNOPENED and ready to do business

Sorry, legislators justify their existence in Sacramento by writing crap legislation they themselves wouldn't work with or abide by.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RichardP13 on 10/21/2015 2:08 PM

If you look at the title of §4910 it is "Board Action Outside of Meeting Prohibited".

Lets be honest, that statute actually contradicts itself. In one paragraph it says that AWMs are prohibited and in another paragrah, as cited and linked to earlier, also specifies that in specific instances, an action, and even a meeting, may be taken via e-mail:

(2) Electronic transmissions may be used as a method of conducting
an emergency board meeting if all directors, individually or
collectively, consent in writing to that action, and if the written
consent or consents are filed with the minutes of the board meeting.
These written consents may be transmitted electronically.

The lawmakers are using semantics vs. being clear.

Yes, per statute, actions without meetings are prohibited.
However, an emergency meeting held exactly as an action without meeting would be handled is allowed.

Hence, they are now calling an AWM an emergency meeting. The only good thing the lawmakers did was define what an emergency meeting was.

This is mentioned in several articles. Here are a few:

California Law Sets New Requirements for Homeowner Association Meetings :

Perhaps the most significant aspect of SB 563 is its prohibition (with the exception of emergencies) of what has been known as “action without a meeting.” . . . Emergency meetings may take place without such noticing, and they may even take place via email; but they must meet the criteria that “there are circumstances that could not have been reasonably foreseen which require immediate attention and possible action by the board…”

Major Changes in the Open Meeting Act, and in Board Procedure:

Emergency e-mail decisions. The board can make an emergency decision using e-mail if the board unanimously agrees on the action. The e-mails must be made part of the minutes.

Homeowners Association Board Members and the Evolving Open Meeting Act:

No email meetings, or decisions can be made via email unless it is a true emergency and all directors consent to the emergency email meeting. This written consent must be filed in the minutes of the meeting.

I also think we are arguing over semantics.

Therefore let me word this differently.

In California, an HOA/COA may no longer utilize an action without meeting as outlined in corporate statutes UNLESS there is an emergency, as defined by CA statutes (typical example may be acts of nature), then an HOA/COA may utilize an action without meeting providing they call it an emergency meeting and document it the same way one would an action without meeting (unanimous written consent attached to the minutes).

Again, semantics.

RichardP13 (California)
Posts: 3,868

Posted:

Tim

You are giving more credit to legislators than they deserve. The whole purpose was to eliminate "Actions without a Meeting" which were being abused to high heaven, EXCEPT in emergency situations (very grey area). Until they specifically prohibit emails between interested parties, I will follow my best instinct, my nose.

KerryL1 (California)
Posts: 14,550

Posted:

Tim understands our CA legislation well and so do you, Richard. But "emergency" is not a grey area. It can be acts of nature and in high rises it's likely a mechanical equipment failure.

The key words, imo, are issues "that could not have been reasonably foreseen which require immediate attention and possible action by the board…”

TimB4 (Tennessee)
Posts: 21,059

Posted:

Richard,

I agree that that was likely the legislatures purpose.

However, they realized that there may be times when such an action is needed and they also wanted to provide for those times but still send the strong signal that Boards need to do things at meetings and in the open. Hence the language they used.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 10/21/2015 4:43 PM
Tim understands our CA legislation well and so do you, Richard. But "emergency" is not a grey area. It can be acts of nature and in high rises it's likely a mechanical equipment failure.

The key words, imo, are issues "that could not have been reasonably foreseen which require immediate attention and possible action by the board…”

Come manage 100 associations and see what the different variations of "emergencies" people come up with.

This started out as emails between directors and now talking about actions without meeting. Two different topics.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By RichardP13 on 10/21/2015 5:03 PM
<
This started out as emails between directors and now talking about actions without meeting. Two different topics.

Not really.

The original question was "Is it appropriate for the BOD to use email to discuss business issues? "

Discussing business issues is done for actions without meetings and (in CA) emergency meetings.

The answer to the question is it depends on the circumstances but in general, in States with open meeting laws it is not appropriate.

RichardP13 (California)
Posts: 3,868

Posted:

Tim

We are really not on the same page.

DonA2 (Arizona)
Posts: 170

Posted:

We are an HOA of 300 detached family homes. Pool in the common area. Three Board members.

And I've found this:

Arizona—"We don't have any legislation governing the use of email by associations," says Kristen L. Rosenbeck, a partner at the Mulcahy Law Firm PC in Phoenix, which represents associations. "This past session, the legislature brought it up, and the legislation didn't pass. In our firm's opinion, boards should be careful of email and being in violation of Arizona's open meeting law. Use email for distribution and sharing of information, but the only vote that takes place on email should be in an emergency situation or with unanimous written consent, which is permitted by the Arizona nonprofit corporation act."

And this:

Do open meeting laws apply to other forms of discussion, deliberation, and information sharing such as real-time texting, online chatting, or cell phone conferences?

Yes, for certain types of real-time communication. Since the day the open meeting law was introduced in 1994, a number of new and powerful forms of communication have become ubiquitous. While these new forms of communication are important tools that can improve association administration and communication, it is quite possible that the open meeting laws would apply to these communication forms, otherwise an unscrupulous board could simply circumvent open meeting laws by conducting the majority of their business in real time in covert texting or online chats. E-mails do not constitute a meeting under the current version of the open meeting laws.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By DonA2 on 10/22/2015 7:27 AM
E-mails do not constitute a meeting under the current version of the open meeting laws.

Don,

You hit the nail on the head. E-Mails ARE NOT meetings. especially with the definition spelled out in our Corporation Code.

That being said, the issue is why these rules exists. Many states conduct meetings not open to their members. Some are happy they don't have to invite them. Their reasoning is that only a few will step up and serve a community. Well folks, to the ones that don't serve on a BOD or committee, that is their right. The only legal right they have to a community is pay their assessments on time and follow the rules, THAT's ALL! BUT, with few exceptions, they have the same right to information as the people actually making the decisions on their behalf. We have a habit of forgetting that.

Open Meeting laws are no different that gun laws, or the other myriad of laws on our books throughout the country. We don't need more restrictions, we need real mechanisms to enforce what we already have. I don't really blame legislators, I blame the people who continually put them there and don't oversee what they are doing. They are there to write laws, and they will continue to bury us in meaningless BS legislation until WE STOP them.

By the end of 2014, California had 50,223 HOA's, BUT have no enforcement vehicle to help regulate our industry. Why not? Why do people pay their assessments? One, because they are good, responsible people, or they know there is an ENFORCEMENT POLICY that has late fees and liens and foreclosures. If you don't pay your water bill, under certain legal circumstances, we will pull your meter.

BUT, unfortunately, for the people who lead their communities, there is no enforcement mechanism. This goes for BOD, committees, management companies, vendors and even attorneys. Once they know there are real penalties, they have a habit of stopping their bad behavior.

Th majority of people are responsible and are committed to doing the right thing for the right reasons. They are being punished for the actions of the few. It's the least we can do for the 50,223 communities here in California.

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