Official documents

Started by KarenS11 • 13 replies • 1798 views

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KarenS11 (Florida)
Posts: 148

Posted:

This question has been posed on another forum. Would appreciate input/insight from Florida forum members.

What is consider "official documents" if a case goes in front of a judge?

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I understand the meeting minutes are considered the "official documents" of the HOA. However, after requesting my board to let me review their emails. I found out, 1) They are conducting official business that way and 2) Some nasty things were said about me (from the president). I have copies of these emails and I have formally asked for a letter of apology from the Board. So far, it's been well over 60 days (yes, I sent a couple reminder letters) and no response. Also, it took my board 45 days to hand over the emails (I learned they asked their attorney for his advise about handing them over. THey contacte him at least 30 days past the allocated tiem frame to provide the records to me. He told them I was permitted to have copies of their emails and to hand them over ASAP) If I choose to hire an attorney, will the judge consider the emails or will the judge just ignore them and just go with what the minuters reflect?

PS I offered the board the option of me waiving the $500.00 fine they incurred when they didn't turn over the emails in the allocated time frame as per Fl Statutes. If they would write me a formal letter of apology.

DonnaS (Tennessee)
Posts: 5,671

Posted:

KAren,
What position do you hold in the association? Are you a Board member? Do you sit on the ACC or any other committee? If you do not, then we can not offer you advice other than to say, E-Mails are NOT considered "official documents" of the association. Your Board should not be doing business this way but that is another issue. This sounds like a she said, he said situation and basically, this is all hearsay. You have a problem with your Board, and this subject is what we try not to get involved in.

A letter of apology is something that you can demand but if you get one or deserve one, we surely won't address.

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Unless you know how a judge has ruled in previous cases of a similar nature, I don't think anyone can predict how a judge will rule in another case. I think lawyers, who are more familiar with the judges, may have a better handle on this. There can always be, and have been, surprises.

KarenS11 (Florida)
Posts: 148

Posted:

This question is not from our HOA- thank goodness, this is NOT an issue we have had to deal with!! It was posed by someone on another forum and I wanted your input.

I remember something in a class that I took about an HOA board making decisions via e-mail VS at a noticed board meeting.

So I am thinking that if offical decisions have been made via e-mail, that they may be considered official documents. But the other side of the coin is that if they made decisions via e-mail when they should have been made in a noticed meeting, then the board may not be turning them over- in anticipation of a lawsuit. Then it wold seem that the only way the poster cold obtain them would be through discovery.

KarenS11 (Florida)
Posts: 148

Posted:

Aha! I think I found the answer- excerpt from Becker and Poliakoff newsletter:

What about e-mails between the Board and/or its Manager or
Management Company? The Florida Statutes provide owners
the right to inspect any records relating to the operation of
the association that are not barred by the attorney-client
privilege or work-product privilege while litigation is pending;
information obtained by the association for approval of the
transfer of units; and unit owner medical records. None of
the exceptions are presumably applicable here with regard
to e-mails by and between the association and its Manager.
By analogy to other areas of law (relating to evidence and
discovery) a Court or arbitrator would likely find that records
maintained on a computer data-base, still constitute “official
records”.
While there does not appear to be any Florida case law or
opinions relating to whether e-mails are official records of
associations, a legal opinion released by the Division of
Land Sales, Condominiums, and Mobile Homes (“Division”)
concluded that:
Condominium owners have a right to inspect e-mail
correspondences between the Board of Directors and
the property manager as long as the correspondence is
related to the operation of the Association and does not
fall within one of the three statutorily protected exceptions.
Letter through J. Sue Richards, Chief Assistant General
Counsel, DBPR, to Robert Badger, Supervisor, Bureau of
Customer Service (March 6, 2002).
Thus, it appears that as long as the nature of such e-mails deal
with the “operation of the association”, they will have to be
produced as part of an owner’s request to access the official
records.

http://www.becker-poliakoff.com/pubs/newsletters/cu/cu_2008_v1.pdf

SusanW1 (Michigan)
Posts: 5,202

Posted:

Weel here's ANOTHER reason for not conducting official business over email. All those personal remarks and personal opinions are in writing now and are for everyone to see, when what should be seen are simply the ACTIONS of the Board, i.e. motions.

(Just ask the Mayor of Detroit about his text messaging and how much trouble he's gotten into.)

The HOA President should put a stop to this at once.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Yeah Susan,
And the fact that Florida has an open meeting Statute where that is the only venue for holding Association business. Where the heck did e-mail business get written into the Statutes? What happened to members rights to hear what the Board is up to? Dunno but e-mails don't seem to fit the requirements of the open meeting rules.

JimM7 (Florida)
Posts: 71

Posted:

Hi Karen...in Florida this is simple...look at FS 720.303

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By DonnaS on 05/21/2008 5:58 PM

Yeah Susan,
And the fact that Florida has an open meeting Statute where that is the only venue for holding Association business. Where the heck did e-mail business get written into the Statutes? What happened to members rights to hear what the Board is up to? Dunno but e-mails don't seem to fit the requirements of the open meeting rules.

You are right, Donna, email communications do not fit into the open meeting laws. AZ also has an open meeting law which says "all meetings" of the board and assn are open to the members. A quorum of the board "meeting" thru email is a meeting! However, because email communications are not explicitly spelled out in the open meeting law, many boards are doing business this way. If my bill -- SB1019 -- is passed this oversight will be corrected. Right now the bill is stalled in the House rules committee -- politics stinks!!!

KarenS11 (Florida)
Posts: 148

Posted:

Thanks all. The person who posed the original question had some other issues, I think.

Wonder how many HOA boards are printing out and retaining all of those e-mails?!

JimM7 (Florida)
Posts: 71

Posted:

Hi Donna.....remember..the Florida "open meeting" or Sunshine Law applies to municipal bodies ONLY.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Jim,
I beg to differ with you. Pages 5 and 7 of the 2007 Sunshine Laws has 2 paragraph sections that "EXEMPTS HOAS" from following the Sunshine Laws EXCEPT when an issue between the City or County permitting Depts may come into a discussion in regards to permits or building matters for the HOA. Otherwise HOAs must follow Statute 720:303 (2)

2) BOARD MEETINGS.--

(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.

(b) Members have the right to attend all meetings of the board and to speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes. The association may adopt written reasonable rules expanding the right of members to speak and governing the frequency, duration, and other manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak. Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the members is inapplicable to meetings between the board or a committee and the association's attorney, with respect to meetings of the board held for the purpose of discussing personnel matters.

(c) The bylaws shall provide for giving notice to parcel owners and members of all board meetings and, if they do not do so, shall be deemed to provide the following: ETC,ETC,

JimM7 (Florida)
Posts: 71

Posted:

Thanks Donna...that's what I said...720

DonnaS (Tennessee)
Posts: 5,671

Posted:

Hi Jim,

I guess that I read your statement incorrectly or did not understand it totally. You are correct and me too!!

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