Florida HOA records keeping & personal e-mails

Started by SureshD • 11 replies • 2939 views

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SureshD
Posts: 268

Posted:

Does anybody have any experience or knowledge of how FLA's 720 statutes, with regards to record retention and membership's right to review Assn. documents, is applied to the e-mails of Board, committee, and Prop. Mgr. emails?

It seems like alot of info could be intentionally or unintentionally "hidden" from retention and review by being contained in personal email accounts.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Suresh,

All official records of the HOA are open for review to members, which I am sure that you are aware of. E-mails are still personal property and are not open to members for review. HOWEVER, the BOD and property manager better not be conducting business , making decisions and voting thru e-mail communications. That is against the Statutes as you know.

If you are hell bent on seeing personal e-mails, then you will need an attorney and a court order to view them. If you are certain that these e-mails are conducting business, then put the Board and PM on notice that this is against 720 Statutes. They are skirting around having properly called meetings by discussing matters thru the emails but perhaps they are just DISCUSSING matters. No law against that.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Donna,

Whether just discussing or voting on assn matters, in AZ it would be a violation of the open meeting law. Exactly what does the FL law state?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Donna,

Here's what 720.303(2)(a) says: "(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business."

IMO, this means if a quorum of the board only discusses an issue they are still conducting assn business, therefore it is a meeting and must be properly noticed. A quorum of the board discussing assn business by email would be a violation of the FL open meeting statute. At least that is my interpretation of the FL statute.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Mary,

Anytime a quorum of the Board meets, it is considered a meeting. That must be posted 48 hours prior and open to the membership. Same as Arizona.

Unless an association specifically states that e-mails or electronic transmission as they call it, may be used, only open meetings of the Board are allowed. But these are probably not considered meetings or quorums by the Board and P.M. because of doing whatever they are doing, by e-mail. In reality, if the entire Board gets the e-mail, they are quorumed. It's just a bad system to use. The Statutes do not address e-mail under Board meetings.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Donna,

The AZ open meeting law statutes do not specifically address email communications either. However, there are several attorney's general opinions which state exactly what constitutes a meeting of the board: when a quorum meets to discuss assn business, whether any action or voting takes place or not. Therefore, if a quorum of the board receives an email communication and responds to it, technically (and legally) a meeting has occurred and the open meeting law has been violated. The present AG issued an opinion regarding email communications for public bodies and this is what was stated. Since the HOA open meeting law is the same as the public body open meeting law, this opinion would also apply to HOAs. I know that HOA attorneys are advising BODs to be very careful with email communications. If my open meeting law bill ever gets passed, email communications will be addressed.

DonnaS (Tennessee)
Posts: 5,671

Posted:

E-mail has been around for what 18-20 years? Wouldn't you think that someone would address this by now.

Our Master Gardener org was going to send an amendment change for a vote to the members. The By-laws say that written notice must be given 30 days prior to the meeting at which the vote is taken.

We have a great newsletter, website and a group Yahoo that all send a message to everyone. So I asked our legal member "Is not those 3 vehicles of communication good enough to consider that written notice? NO WAY. She said that e-mail is not considered legal communications form nor a legal record can be taken from e-mail

PeterB1 (Florida)
Posts: 257

Posted:

Let's try a 'for instance' in the real world (FL laws apply).

I write a draft of a new Board policy. A week before the Board meeting, I email a copy to all Board members for their review. I note that I expect a vote on the policy at the Board meeting. [Have I violated any laws yet?]

One member of the Board responds by email with a change in the wording. [Have I violated any laws yet?]

I revise the document and email it out again. [Have I violated any laws yet?]

Two Board members reply to me saying they are opposed to the policy I wrote. [Any laws violated?]

Your opinion?

peter

BrianB (California)
Posts: 2,820

Posted:

Peter: every state is different in what they say, if anything, about open meetings and what constitutes an open meeting.

here's my answers and my logic to your very good questions. Not saying they are gospel, just how I think (fyi, all logic here based on a 3 person board, so 2 of 3 is a quorum).

I write a draft of a new Board policy. A week before the Board meeting, I email a copy to all Board members for their review. I note that I expect a vote on the policy at the Board meeting. [Have I violated any laws yet?]
Nope, this is a communication, just like a letter or newsletter. it is one way only, and does not constitute "business" in my books.

One member of the Board responds by email with a change in the wording. [Have I violated any laws yet?] Yes, maybe. This is very close to business, because the member COULD (and should) have waited until the meeting to ask for edits to be made. this is a two way communication, and is probably business.

I revise the document and email it out again. [Have I violated any laws yet?] If the law states "no business", then yes.. you have made a document, gotten feedback, revised it, and sent it out again. that's working, and it's what a board does, so it's a meeting.

Two Board members reply to me saying they are opposed to the policy I wrote. [Any laws violated?] Like the second question, maybe... if they are simply stating their OPINION, then perhaps not. If they are thinking this will affect the agenda, presentation, board vote at the meeting, then yes, it's business. If they ask for something do be done or not done because they oppose it, yes, it's likely a meeting.

To lessen the chance of a communication being seen as business, i would have suggested that at the previous board meeting an action to be taken was that Mr A prepare and send out a draft of the policy to be reviewed in advance of the next meeting. then, on the next meeting agenda, schedule time to present, discuss, vote, etc. on the policy . In court, at least, i could argue that the board was open about the workings of the system, and that it was simple efficiency, not covert subterfuge, to get the draft in the hands of the board for review so that the entire meeting time wasn't taken up with reading the thing.

just my three cents.

SureshD
Posts: 268

Posted:

Intertesting discussions...

It is becoming obvious that business could be accomplished "off the record" and thus subvert the current FLA. laws or at least the "spirit" of the laws.

I am concerned as an ARC member as our e-mail "traffic" is increasing and I do not wish to be part of anything remotely considered inappropriate. I feel most of the Board and fellow committee members are oblivious to the possible ramifications of this action.

Ignorance is Bliss!

DonnaS (Tennessee)
Posts: 5,671

Posted:

Sam,

My Husband was on our Fl ARC. They were sent any applications, copies of any materials that would be discussed or voted on ahead of time by e-mail. But NO discussions until meeting time. You have to play it safe.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Quote:

Posted By PeterB1 on 05/15/2010 2:01 PM
Let's try a 'for instance' in the real world (FL laws apply).

I write a draft of a new Board policy. A week before the Board meeting, I email a copy to all Board members for their review. I note that I expect a vote on the policy at the Board meeting. [Have I violated any laws yet?]

One member of the Board responds by email with a change in the wording. [Have I violated any laws yet?]

I revise the document and email it out again. [Have I violated any laws yet?]

Two Board members reply to me saying they are opposed to the policy I wrote. [Any laws violated?]

Your opinion?

peter

Peter,

My comments are based on the AZ Open Meeting Law which states all members are entitled to receive notice of ALL meetings of the assn. A board meeting occurs when a quorum of the board meets to discuss assn business, whether any action or vote is taken or not.

#1 -- No violation of the OML
#2 -- If your revised document was sent to a quorum of the board then it is a violation of the OML. The reason being that another member responded to the initial email and copied all, or at least a quorum of, the board members, thus entering into a discussion of assn business.
#3 -- It depends upon the size of your board and how many board members constitute a quorum. If a 3 member board, then yes the OML has been violated. However, if 3 members does not constitute a quorum then, no it is not a violation. However, if the latter applies, and one of the members forwards the email to other board members that would constitute a quorum then a violation of the OML has taken place.

The key here is whether a quorum of the board is involved and whether that quorum is discussing assn. business.

A board member may make a request of the PM for specific info by email and copy all the board members which would NOT be a violation of the OML. The PM may reply to all the board members and still not be in violation of the OML as long as the PMs response does not generate a response from any board member that is copied to at least a quorum of the board. In this case the PM is only passing along info to the board members and they, in turn, are not discussing any assn business as long as they do not reply to a quorum of the board.

It may sound complicated; however, if you take the time to think it out and keep in mind the intent of the law, it really isn't.

Regarding the AZ OML, email communications are not spelled out; however because of several attorney's general opinions over the years we know what the intent of the law is and we know exactly what constitutes a meeting. The reason I cannot comment on the FL law is because there are gray areas and I don't know if there have been any attorney general opinions to explain those gray areas. But just on the face of the law, which states a meeting occurs when a quorum of the board meets to discuss assn business, I would think the same answers would apply.

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