HOA and emails to members

I am interested in any feedback I can get on this site.

I am a board member, not an officer but an elected member. On many issues I seem to be the sole desenting vote, mostly on fiscal issues. This has made me un-popular with the board President. Yes, I am the one always asking "Why is that necessary?"

That is a quick background- here is my question: Our board is very heavy on email, averageing 5-6 emails a day between the board members. These emails are mostly about HOA items, with the occasional non HOA item.

Suddenly (past 10 days) I am getting no email from the board. Went from 5 x day for the last two years to zero. There are lots of HOA business pending and it seems the President has summarly removed my name from the list...even though I am a board member. I was told in confidence that the President did this. (I have been known to use thier own words againt them)

I am in AZ., and our open meeting law does not apply to HOA's and our CCR's really do not address this. Roberts rules seem silent on the issue as well.

My logic tells me these emails qualify as board business, which I would be intitled to be present at- espessially when all other members are being cc'd or involved. I will be addressing this but I just can not seem to find an actual law or example to back me up on this often used communication. So- there it is- thanks for any help.

Agreed, probably against the law, easily a bad idea. Leaving you out of the chain is just one of the many reasons email meetings are a bad idea.

If whoever told you that you were being purposely omitted from the emails doesn't have the stones to forward them to you, I would immediately request the BOD provide you with all emails for the month. They are communications of the corporation and would be subject to a document request except for correspondence with the HOA attorney.

RZ,

Many people are confused about the open meeting law. There are actually 2 in AZ; the public body open meeting law; and the open meeting law for HOAs -- ARS 33-1248 for condos and 33-1804 for planned communities. Both of the HOA laws read the same; I've copies the p/c one below for your info.

Although not specifically addressed in the open meeting law, if HOA business is being discussed in these emails that would definitely be a violation of the open meeting law. There have been several attorney genera opinions issued regarding this law and it has been ruled that when a quorum of the board meets (even at a social gathering) and discusses assn business, whether any action or votes are taken or not, it is considered a meeting and must be properly noticed. The intent of the law is to make certain the members of the assn have an opportunity to be present when HOA business is being discussed.

What I say can be verified by any attorney practicing HOA law and any assn manager worth his salt should know the same.

From your statement saying you are a board member -- an elected member by not an officer I take that to mean you are a director. Whether a director or an officer, all board members have the same resp. and duties to the assn. Being just a director only means you don't have an added resp. that being an officer might entail. If the Pres has chosen to omit you from receiving emails, the other board members should realize the same thing can happen to them if they should anger the Pres. The Pres needs to be made to understand that he/she is not the "ruler" of the board -- he/she is only one member of the board and can be stripped of her "Pres" duties as easily as she was elected to them. If you have a good relationship with the other board members I certainly would suggest enlightening them on this. It really angers me when I hear of BOD Pres' who act like little dictators!

If you wish to correspond privately please feel free to email me @[email protected]. I'm in Glendale and have been involved in HOA issues for over 10 years.

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:

1. Legal advice from an attorney for the board or the association. On final resolution of any matter for which the board received legal advice or that concerned pending or contemplated litigation, the board may disclose information about that matter in an open meeting except for matters that are required to remain confidential by the terms of a settlement agreement or judgment.

2. Pending or contemplated litigation.

3. Personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.

4. Matters relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.

B. Notwithstanding any provision in the community documents, all meetings of the association and the board shall be held in this state. A meeting of the association shall be held at least once each year. Special meetings of the association may be called by the president, by a majority of the board of directors or by members having at least twenty-five per cent, or any lower percentage specified in the bylaws, of the votes in the association. Unless otherwise provided in the articles or bylaws of the association, not fewer than ten nor more than fifty days in advance of any meeting of the members the secretary shall cause notice to be hand-delivered or sent prepaid by United States mail to the mailing address for each lot, parcel or unit owner or to any other mailing address designated in writing by a member. The notice shall state the time and place of the meeting. A notice of any special meeting of the members shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws, changes in assessments that require approval of the members and any proposal to remove a director or an officer. The failure of any member to receive actual notice of a meeting of the members does not affect the validity of any action taken at that meeting.

C. Unless otherwise provided in the articles or bylaws of the association, for meetings of the board of directors that are held after the termination of declarant control of the association, notice to members of meetings of the board of directors shall be given at least forty-eight hours in advance of the meeting by newsletter, conspicuous posting or any other reasonable means as determined by the board of directors. An affidavit of notice by an officer of the corporation is prima facie evidence that notice was given as prescribed by this section. Notice to members of meetings of the board of directors is not required if emergency circumstances require action by the board before notice can be given. Any notice of a board meeting shall state the time and place of the meeting. The failure of any member to receive actual notice of a meeting of the board of directors does not affect the validity of any action taken at that meeting.

For a Member who is not a Director this would be the case.

It is illegal misconduct to withhold communications (even confidential and privileged communications) from a Director. Right?

This happened in my HOA. (I meant to get back with this to the thread on CoI.) We had a Director who was on the opposite side of a debate about whether to sue a homeowner. The perception that he was a friend of this homeowner was proposed as a conflict of interest by Directors that disagreed with him. He then disclosed that he was not a "friend" of this homeowner, but that he was considering a possible business venture (that never went forward). The other Directors then excluded him from email communications (with no formal discussion, motion or vote on the CoI issue). They did however, include him on email votes on these issues, from which he was excluded from the email discussion.

For example, the BoD "decided" to remove a fence between the homeowner's yard and HOA Common Area. Then they conducted a vote by email to remove "the fence over by the common area", which is vague as to exactly which fence. The excluded Director could not get an answer as to which fence was to be removed or why. He then complained that the motion was unclear and voted against it. (I think he should have specifically stated that the vote would be invalid and not voted.)

I believe this was misconduct. A Director may not be excluded from discussions of HOA business. If a potential Conflict of Interest (CoI) is divulged, then the remaining Directors must make a determination as to whether a CoI actually exists. This should be done based on a prescribed policy, not on an ad-hoc or political basis. If CoI is determined, then the Director should be excluded from the vote, not the discussion, or from both, again based on a prescribed policy.

Anyone can discuss anything privately with anyone else (barring confidentiality concerns). A Director can discuss an idea in private to sort out how to present it. Such discussions may precede but may not replace discussion of HOA business by the BoD.

That's what I think.

This is in Texas. We have no open meeting laws. When possible, I would like to amend our Bylaws to add language similar to CA and CO statutes regarding votes outside of meetings. I also want to promote the adoption of specific policies (including CoI policy) as have been discussed in this forum. I hope those discussions and suggestions for policies will resume.

Michael,

I agree with you on your views concerning a possible conflict of interest. If the board felt this board member was in conflict they should have handled the situation as you state. But, it was real big of them to include him in the vote albeit the fact that he may not have understand the specifics of the matter being voted on.

I'm not sure about CA and CO law, but the email communications and email voting conducted by your board would certainly be in violation of AZ law. I don't know how the CA and CO open meeting law statutes are worded, but the AZ statutes state "ALL" meetings of the assn must be properly noticed. All members have a right to attend and even speak before a vote is taken by the BOD. This cannot happen if discussions and voting are conducted by email. Also, a meeting is considered to take place when a quorum of the board meet. If a quorum of the board members are copied on an email and asked for their input then proceed to vote, IAW AZ law, a meeting has taken place.

I did that, above: "Conflict of Interest (CoI)" 

You are joking, right? ;-)

I should have stated, "AZ, CA and CO". My apologies to all of AZ. ;-)

Seriously, I do want a future BoD to take into consideration the statutes of all three states in proposing Bylaw amendments.

But are you quoting statute on meetings of the BoD or meetings of the (Membership of the) Association?

If the former (or inclusive) then it looks like the laws of some of these states allow inclusive discussions and unanimous decisions by email, while those of others do not allow any kind of discussion or action (except certain closed sessions) without an open meeting noticed to the Association.

It's called 'freezing a dissenter out' and it is all too easy in the age of emails.

Michael,

In answer to your question, the AZ open meeting law pertains to ALL meetings of the ASSN, which would be member meetings and board meetings. I believe the AZ law is more inclusive that that of other states that I've read. And, yes there are 4 specific topics that can be discussed in a closed session.

Michael, YOU can believe it's "misconduct" all you want.

Seriously, how many times are we going to re-try this board for you?