Posted:
Here is a past post on Beth Grimm's website. She is a California attorney.
http://www.californiacondoguru.com/FYI/fyiframe.html
USE OF EMAIL - Watch Out For the Pitfalls
How many of you think about where your e-mail goes, where it is stored, and what kind of damage it might do,... before you press the "send" button?
Undesired Distribution of Messages NOT "Meant" to be shared or Use of Email To Controvert Regulations and Laws:
Believe it or not, there are some more or less unwritten "rules" relating to the use of the internet (email). It seems people forget the "rules" with the ease of the simple act of typing a message, and pushing "send". The hassle of the telephone and voicemail "tag" is gone. The accountability of face-to-face communication is out the window. Inhibitions that might otherwise exist seem to dissolve. People often act differently, more bold, and less "reasoned" when communicating by email. It is important to understand that use of email for association purposes can be easily abused, in light of existing laws regulating communications among board members and meetings requirements. Here are some of those: 1363.05 (b) requires open meetings except for specified issues entitled to executive consideration, 1363.05 (d) requires minutes of any meeting to be made available to the members, 1363.05 (f) considers 'meetings' to include any 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 scheduled to be heard by the board, except those matters that may be discussed in executive session." These rules do apply!
Possible Unlawful Meetings: If board members are discussing any business of the association via email, and especially if they end up together through instant messaging or otherwise, that could constitute a "meeting" under the statute. Legal meeting requirements would apply. If decisions are made outside meetings via email "polling" - that conflicts with legislation requiring access by members to meetings where open discussions should be held, and could be challenged. (Telephone "polling" was one concern by legislators who expressed a necessity for open meetings rules so that "behind the door" decision-making would be eliminated except as to specific subject matter).
Lack of Consideration: Using e-mail or sending a message on the Internet is not like using the telephone. On a telephone call, there is someone on the other end that has the ability to respond or to challenge what you say. When using e-mail, it's not like having a face-to-face dialogue. There is no one on the other end that can contradict you, challenge, or punch you in the nose. When using e-mail, it is not like pounding away on a "vent letter," sticking it in an envelope, and having a "cooling off period" between the time you seal the envelope and mail it. You can pull it back before you stick it in the mail. It is virtually unretrievable once sent. This can be a problem. It seems that some people find great satisfaction in "venting" via e-mail. Personalities often change. I find that people tend to be more aggressive, more careless, more pointed, more emotional, more condescending and less thoughtful, less careful, less amiable, and less aware of protocol. Given the "trail" of the message, this can lead to claims by owners of unfair treatment, lack of due process, and even discrimination if email is used to disparage people.
Lack of Security/Legal Protections: Other concerns involve security and "discovery" of messages sent by email. You may think you have "erased" damaging information from your computer but copies of e-mail messages may end up stored on mail servers that have general access to all material to check for unauthorized access and monitoring purposes. Because of this access and storage capability, discovery of the information for litigation purposes is considered by some to be guaranteed for all except encrypted messages. Client e-mail protection and security for homeowner associations communications (board and/or attorney) is as yet untested in the courts but it is possible that a fact finder could conclude that there is no reasonable expectation of confidentiality of unencrypted e-mail messages.
The "test" if an attorney-client privileged communication or confidential communication is sent over the Internet, if such communications are demanded in a discovery order, probably comes from a 1947 case where Judge Learned Hand was examining the question of whether failure to use available technology could subject a person or business to liability of that failure causes injury to others. The case was U.S. vs. Carroll Towing (1947) 159 F.2d 169. The facts in this case were that a barge broke away from its mooring and sank, causing losses. The court determined that because the barge company failed to use readily available protective resources (a bargee or attendant), the barge owner was liable for the losses. From this case came a "test" that certainly could be used to test failure to use available technology to protect confidentiality e-mail messages. That test of whether an owner/business' (or association board's or board members in this case) duties to protect against injuries involves three variables: 1) The probability of the event (barge breaking away in older case) 2) The gravity of resulting injuries (if the barge does break away in older case) and 3) The burden of adequate precautions (cost of adding available protections)
In our world of email use, there are protections available (encrypted email, confidential statements, etc.). This case suggests that in our scenario, there is risk in dealing with any sensitive information via email, without taking precautions to protect it.
Perhaps the most important message of this article is that Associations need to be aware of the pitfalls and implement "Use of Email" policies to assure adequate protections are in place.
Beware of the pitfalls you may suffer through the ease and seeming simplicity of email communications - they may be very large!
http://www.communityassociations.net/cacondoguru/archives/2006/12/
December 12, 2006
What To Do If Board Meets In Secret
An email I received recently claims that the Board of the Association meets "in secret" in one of the Board Members homes and the sender wanted to know if this was illegal and what he could do about it. That is not really an uncommon complaint and it may or may not be a problem. If the Board holds all of the meetings in a Board Member's home, that is not necessarily a problem, especially when there is no clubhouse. However, if all of the meetings are in a Board Member's home, and homeowners are not notified of any of the meeting dates and times, or allowed to come, then there is a problem. There are only a few subjects that entitle a Board to meet "in secret". In California, those subjects are basically related to discussions of threats of or pending lawsuits, with or without legal counsel present, contract negotiations, personnel matters, and disciplinary matters. These subjects are considered appropriate for "executive sessions" (which are essentially the same as a "secret" meeting when homeowners are not invited to attend). In addition, holding an executive with the association counsel to discuss attorney-client privileged matters of a legal nature are appropriate. All other board meetings must me disclosed, and owners have a right to at least 4 days' notice, either by mail, posting in the common area, newsletter, provisions in bylaws, etc.
So what happens if a Board is not complying with these requirements? The requirements are found in Civil Code Section 1363.05 which is part of the Davis Stirling Common Interest Development Open Meetings Act (which is similar but not exactly the same) to "the Brown Act" which relates to public meetings. If a Board violates the provisions of Civil Code Section 1363.05, then 1363.09 provides a remedy to owners. It says, in pertinent part:
"1363.09. REMEDIES. (Operative July 1, 2006.)
(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by an association of which he or she is a member, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 4 (commencing with Section 1357.100) of Chapter 2, were not followed, a court may void any results of the election.
(b) A member who prevails in a civil action to enforce his or her rights pursuant to this article shall be entitled to reasonable attorney's fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation.
(c) A cause of action under Section 1363.03 with respect to access to association resources by a candidate or member advocating a point of view, the receipt of a ballot by a member, or the counting, tabulation, or reporting of, or access to, ballots for inspection and review after tabulation may be brought in small claims court if the amount of the demand does not exceed the jurisdiction of that court."
As you can see, there are some remedies that could apply to a violation of the meetings act and also the new elections laws. It's best to comply, of course. If an Board has extenuating circumstances that lead it to believe it can have closed meetings, it should seek the opinion of a knowledgeable attorney. There are some circumstances that would suggest seeking court approval of alternative meeting structures to deal with disruptions or other potentially serious problems.