EMAIL LIABILITY?

Started by RM2 • 22 replies • 1379 views

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RM2 (Florida)
Posts: 3

Posted:

Our Condo Association (professional offices) has a Board Member (Pres.) who refuses to email out to Board Members, and refuses to allow other Board Members to email him, stating it's not his "preferred course of communication" choosing instead to have other Members call him directly.

In the world in which we live, when an action item arises, many Board Members e-mail all members to "apprise" them of the problem/dilemma and either call for immediate Board Action (if it's urgent) or to bring-up at the next meeting. The President, we are certain, simply does not want to receive any e-mails about Association business, choosing instead to bury his head in the sand, claiming he-said, she-said should anything arise down the road. For instance, we need a "no trespassing sign" erected on our property, we've (as a Board) been kicking around this idea for months now, NOTHING DONE, so we emailed a punch list to the Property Manager today (based on our last meeting) and copied each Member, apprising them these things needed to get done and which was a priority for liability, etc.,.

Our concern, as a Board Member is do we have to stop emailing or as we feel, if an urgent Board Matter arises it's our professional duty and responsibility to make all Board Members "aware" of the fact/event/problem/occurence immediately then wait a few weeks for the next Board Meeting.

We do not email daily, but when a problem arises in our opinion it's fastest to email all involved as well as place this concern in written form.

What are your thoughts about continuing to email all Members if and when necessary, if for nothing more than to place it in writing for future reference should anything (liability) happen down the road...?...

Thanks in advance!

JohnK3 (Pennsylvania)
Posts: 967

Posted:

Keeping Membership advised of items of interest is always a good idea.

As for Bozo the Prez, if you've got his email addy, I'd just keep sending him info. What he chooses to read is his business. And if someone on the BOD wants to take the time, give him a call and tell him You've Got Mail.

AnnaD2 (Florida)
Posts: 960

Posted:

RM2, I like what you're doing. We do things the same way. If we've decided at a board meeting to do certain things, it's the perfect way to let everyone know how the things are progressing.

Your prez can play ostrich all he wants and keep his head in the sand. It sounds like he's just not as devoted to his position as the rest of you are. We had a prez like that, too, who would SCREAM at us at meetings for us e-mailing her. But that was because she'd only read her e-mails ONCE per month....and usually just an hour before our meetings. Then she'd be p---- because we all were actually DOING things in between meetings.

But there is also another reason for e-mailing: Paper trail, paper trail, paper trail. Can't do that with phone calls.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By AnnaD2 on 03/24/2009 1:47 PM
RM2, I like what you're doing. We do things the same way. If we've decided at a board meeting to do certain things, it's the perfect way to let everyone know how the things are progressing.

Your prez can play ostrich all he wants and keep his head in the sand. It sounds like he's just not as devoted to his position as the rest of you are. We had a prez like that, too, who would SCREAM at us at meetings for us e-mailing her. But that was because she'd only read her e-mails ONCE per month....and usually just an hour before our meetings. Then she'd be p---- because we all were actually DOING things in between meetings.

But there is also another reason for e-mailing: Paper trail, paper trail, paper trail. Can't do that with phone calls.

And, with all due respect, there's another reason why some people resist using email, and it's not to be an ostrich or be a Luddite.

Lawsuits, lawsuits, lawsuits.

Email can be subpoenaed and people are generally lax in the information, detail, and/or "tone" they put into emails.

People tend to be less "informal" on either phone calls or when using regular mail.

I'm not pushing either way, I'm just saying there are really two legitimate sides to the argument.

SheliaH (Indiana)
Posts: 6,964

Posted:

Sounds like you need an email policy. I think there are a few other threads on this site that disucss that issue and I seem to recall the Community Association Institute (CAI) also has some tips on the subject.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

DonnaS (Tennessee)
Posts: 5,671

Posted:

RM,

Because your Asssociation is located in Florida, I want to remind you of the open meeting Statutes which I am sure that you are aware of. Doing e-mails is convenient for most of us but there will be people, and possibly the President, who do not check their mails regularily. In any important matters, the phone might be a better communication for the Board but I remind you again, if it isn't important to warrant you to call a meeting or to wait until the next meeting, thenyou might want to wait until a meeting with a proper notification to the members is called. It is always a question amoung Boards as to how much they can do outside of the meeting forum.

DonnaS (Tennessee)
Posts: 5,671

Posted:

how about (among)

MaryA1 (Arizona)
Posts: 7,043

Posted:

Although the AZ open meeting law does not specifically address email communications, any time a quorum of the board "meets" whether they take any action or not its considered a meeting. Therefore, if the board is discussing assn business in email communications it would be considered a violation of the open meeting law. The intent of the law is to allow member's to exercise their rights to attend all meetings of the assn, including board meetings. If a meeting is not properly noticed a member cannot attend, thereby violating the open meeting law.

RM2 (Florida)
Posts: 3

Posted:

Therein lies our problem, when we come into our offices during the morning, if there is anything wrong with the grouns, etc., (lights out (common areas), dumpster door broken, renter/owner has a question for Board, etc., we (as a BOD Member) email the other board members and property mgr to "apprise" them of lights on/door broken/lock not working/etc, we do not vote, just exchange ideas about how to get it fixed. One reason we e-mail everyone is because IF something is addressed and let's say the property manager does not complete the task, the Board has liability NOT the manager as in our state the Prop Manager really carries about ZERO liability as he "works" for the board/association.

Also, we as a Board have used email after our BOD Meetings to ensure everyone on the Board knows their marching orders (Jack gets insurance quote, ROy gets landscaping quote, etc).

Is there a reason we can not email ideas/thoughts to each other versus having to wait weeks/months for another/next meeting? While our president ONLY wants to take phone calls, that's a bit archaic, because whatever we would place in writing we would say on the phone and vice versa.

I do not agree writing about association matters/ideas without voting (via email) is incorrect. If that was the case the only time anything would ever be discussed would be at a meeting and if it's urgent it needs to at least be discussed...?...

Ideas?

DonnaS (Tennessee)
Posts: 5,671

Posted:

RM,
Okay, so the Board has made decisions and voted on items at duly called meetings. The Budget has operating expenses with line items for maintenances and repairs. SO-- all of your bases are covered. Send the e-mail communications out with one to Mr. Prez. He can respond or he won't. It is no longer the rest of the Boards duty to play phone tag with him. He will either change his attitude about the e-mails or he will not be informed of what is going on. Sometimes, these type of hardheaded ideas have to be challenged.Your Board needs to be united on addressing this with him.

Our Master Gardener Pres is just like this guy. I did a meeting agenda without her input after a weeks worth of e-mails and 2 phone calls where she did not answer. When I handed the agenda out at the meeting, she had a "deer in the headlights" look on her face. Now I get the agenda at least on the morning of the meetings so that I can print them out. Our Board is 16 members so imagine us without an agenda.

MaryA1 (Arizona)
Posts: 7,043

Posted:

RM,

I believe FL has some sort of an open meeting law for HOAs, so you have to work within the restrictions of that law. Here in AZ, the board has to follow the restrictions contained in our open meeting law. The Pres, or any board member, cannot send an email asking for a response to a question because that would be construed as holding a meeting -- the email goes to all board members which constitutes a quorum and assn business is being discussed. You would have to work around the law by designating a member of the board as a liasion to the PM to ensure those minor repairs are attended to immediately. Anything major that would require the attention of the whole board should be reserved for a board meeting. If it's an emergency I'm sure your bylaws address emergency meetings. Having a state open meeting law can put some constraints on the BOD; however this law is for the protection of the members and the board will just have to work around it.

I'm a member of my HOAs advisory board and exchange emails all the time with the members of the board and our PM. I'm chairman of the grant committee and I send communications regarding the progress of the grants we're applying for, etc. I don't ask for comments; I'm just relaying info. Sometimes I get a response and a suggestion from a board member, but most times there are no responses. This type of email communication is not a violation of the open meeting law. Passing on information is different than discussing a topic.

RM2 (Florida)
Posts: 3

Posted:

This is a commercial condo assn, so I am unsure what laws govern us as it seems there is not a clear set. Indeed we are not really discussing items via email, more apprising and asking for information, most notably from our Property Manager.

Interesting, I think, that now PM's have to be licensed yet most if not all the times I understand they can and do escape liability if a Board is sued as it's the Board that gets sued.

Appreciate all the comments and feedback herein, fantastic!!!!!

DonnaS (Tennessee)
Posts: 5,671

Posted:

RM,

Tell us about what constitutes a commercial condo association. How many units, are they occupied by business only or are there units above the commercial people? How is it registered with the State? Not for Profit or other?
The Florida law says that any CAM who magages 50 units or more must be licensed in the State. You may not even be required to follow any HOA Statutes.

GeraldT4
Posts: 1,022

Posted:

RM2 - Do officers (Pres, VP, Sec., Treasurer) serve at the pleasure of the Board, as many to most do? If so, then if your Board members aren't happy with the current President you can all cast a majority vote for another President. I'd be curious to see which one of you steps up. Remember, an officer is not the same as a Director/Board member that can only be removed if not in good standing, or by a vote of the association members. Procedures for officer removal are probably outlined in your gov. docs. and or Florida statute. That said, there's a benefit to email and in my opinion there can be a serious downside as email is absolutely NOT better than face to face, or a phone call. As Board members you are entrusted to act on behalf of and to protect the association and property. Waiting weeks or month is not realistic. However, all work required to upkeep the property must fit within the budget. So action items will require bids, work, expenditure. It's good to keep all repairs in perspective and to review them in the grand scheme of your budget rather than as a must do in an email.

BarbaraD6 (Florida)
Posts: 347

Posted:

Anna,
As usual you hit the nail on the head. Our pres won't give us her email address or phone number.She said to contact her through the pm. She even had the pm call me to pressure me to change a vote,and the pm does it for her.
That's why I send emails just to have a paper trail,because the pm nor the pres answer them.
Barbara

MaryA1 (Arizona)
Posts: 7,043

Posted:

Barbara,

Are you a board member? If so, I would think about having her removed as Pres if she treats all board members this way.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

I agree, I think this president should not be allowed to push the Board members around. She should be replaced.
As far as the other stuff with e-mails is concerned it seems evident the the e-mails are not some kind of permission to conduct improper procedures and the content of the e-mails is no different than the content of the workshops or individual conversations. It is what is said at the meetings or what is said on the e-mails that can create trouble, so treat e-mail content as you treat any other correspondence between the Board. I also recall a post that cited a court case that e-mails are recoverable, just like records and notes or minutes..........no different. I do recall this reference as containing any conclusions about if the e-mails were between a majority or greater of the Board, then this constitutes a meeting. I would suspect the recoverable part of these e-mails are what was written and is it relevant to the specifics. Just MHO.

But while we are on this subject, anyone have any comments about "workshops." Is this material recoverable and if it contains notes or minutes or conclusions, what then.

Our Lawyer in SC has apparently decreed that the Board can hold as many workshops as they want. If he mentioned notes or minutes or adoptions of policy, I don't know about it. My question is this?

In view of the above, is it proper to notice an open workshop meeting (a first for us.......good) by stating the purpose of the meeting is to decide how the budget is going to be presented at the annual meeting. Now this signifies a policy decision by the Board, to me. One that would require a vote. Isn't this a contradiction?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Robert,

No decisions should be made, nor votes taken at a workshop meeting. A workshop meeting should only be for gathering info or working on a project, such as a mailing. IMO, minutes should be taken if info is presented that will be used to form an opinion and perhaps vote on an issue. If the workshop is only to work on a project, minutes are not required; however, a memo may be written stating what took place. I think it's good policy to keep records of all happenings.

DonnaS (Tennessee)
Posts: 5,671

Posted:

No Robert,
Workshops are just that. Exchanging of ideas but as Mary has said, no vote or decisions are made. We did 3 workshops with a budget that needed trimming. Members were allowed to have their say as to what they felt that they could do without do do with less. Notes were kept to have on file just in case someone claimed that they were not allowed to have their speaking time. It is amazing that sometimes the membership is smarter than their Board and that they can have great input. But, because there is a Board quorum, all of these workshops are required by Fl. law and many other States, to be posted properly and agendaed.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I still say that many people over-use email and often use it incorrectly, and they often do not realize how bad some of these emails can be if and when brought into a court case.

But who really knows why the president is refusing to use emails.

As someone else said, I would continue to place him on my email distribution list and if he doesn't keep up, oh well.

By the way one of the things we use email for is to provide everyone with a mail call list.

We have one board member who checks the post office box.

He will then compile the list of all mail received and its contents.

He then emails that list to all board members and the board member responsible for that particular matter then goes to pick up that mail from the Mail Call board member.

We make no comments or dialog on the list, simply report on and disperse the mail.

And we all are always on the same page about what comes in.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Michelle,

Sounds like you have a very good system going and it certainly would not violate the AZ open meeting law. As long as only info is being sent out, there is no violation. Our BOD operates the same way. Determining the type of email communication that would violate our open meeting law can be a very complicated process. The AG has written an administrative rule (a 12 page document!) in which a number of hypotheticals are given illustrating the use of email and whether or not they violate the open meeting law. I've used this as a guide for the HOA open meeting law as both have the very same intent and purpose.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Quote:

Posted By MaryA1 on 03/28/2009 10:39 AM
Michelle,

Sounds like you have a very good system going and it certainly would not violate the AZ open meeting law. As long as only info is being sent out, there is no violation. Our BOD operates the same way. Determining the type of email communication that would violate our open meeting law can be a very complicated process. The AG has written an administrative rule (a 12 page document!) in which a number of hypotheticals are given illustrating the use of email and whether or not they violate the open meeting law. I've used this as a guide for the HOA open meeting law as both have the very same intent and purpose.

I would love to see that guide!

MaryA1 (Arizona)
Posts: 7,043

Posted:

Michelle,

It should be in your "inbox" about now!

For anyone else interested, it can be viewed at:

www.attorneygeneral.state.az.us/

In the search box type: R05-010 and push enter. It should be the first document shown.

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