Email: Legal Implications for Community Associations
June 1, 2007
*Please note: The article reprinted here is informational only, and has not been updated. Do not rely on any of the information set forth herein without obtaining legal advice as to current law and the particular circumstances of your situation.
Published in the CACM Law Journal (Summer 2007), this article provides practical information relating to the use of email in community associations, and the legal issues surrounding electronic communications.
As managers, your day is full. Meetings, site visits, document reviews, phone calls - and, oh yeah -- emails. Lots of emails. On your hand held, your desk top, your lap top, and in your dreams as you sleep, or at least try to sleep. You can't recall when you sent your first email because any memory of the novelty has long worn off as you have worn down.
Rue as you might our dependence on email, in the world of community associations it is a way of life. The directors and the members that you serve are email savvy, sometimes to a fault. While email is a valuable communication tool, the technology also has legal implications. The following frequently asked questions are intended to provide you with answers, or at least guidance, to some of the most common email related questions.
I have a couple of Boards that email all the time and often have a running dialogue via email about issues that they will be acting on at the next Board meeting. Is this legal?
Yes, it is legal and not prohibited. However, directors should be cautioned to avoid too many deliberations via email. The issue is whether the Board is violating the Davis Stirling Open Meeting Act, Civil Code Section 1363.05. Essentially, whenever a majority of the Board meets, the meeting has to be properly noticed and open to the membership. The Open Meeting Act defines a "meeting" as "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." Serial email communications technically are not a meeting because a majority of the directors are not together at the same time and place deliberating together.
But if it is not a meeting why do you say it should it be avoided?
The Open Meeting Act is modeled after the Brown Act, which requires that all business of local government be conducted openly, and requires that "deliberations be conducted openly." The Brown Act very specifically prohibits contacts face to face, by phone, or by email, by and among a majority of the members of a legislative body to develop a "collective concurrence" on the item at issue. This is known as a "serial meeting," where through the individual communications a majority debate, deliberate, and come to some decision or consensus on an issue. In a 2001 opinion the California Attorney General made it clear that serial meetings via e mail violate the Brown Act, even if the emails were made available to all of the members. These serial meetings are not consistent with the Brown Act because the public is denied the ability to effectively participate in the deliberations.
The Brown Act is not - I repeat not -- applicable to community associations. However, to avoid violating the spirit of the Open Meeting Act serial discussions via email by a majority of the Board should be limited. Share information, but try to avoid "deliberating" before the meeting.
But what if it can't wait? Can the board take action and vote via email?
First, as a general rule voting by email (or a poll by voice mail) is prohibited. Even where the subject matter of the vote falls within a valid exception to the Open Meeting Act - such as an emergency which could not have been foreseen, or an executive session matter (litigation, formation of contracts, discipline, personnel, and some delinquent assessment issues), a "meeting" where all members can interact in real time is technically required. You might share information via email in preparation for such a meeting, but any decisions should be made in a setting where the Board can truly deliberate. If the Board can't quickly convene in person, hold a telephonic conference call. I keep my own conference call number with a participant code that I can hand out at a moments notice. It's cheap and easy. If all of the directors can't make the call, they can provide their written consent to the meeting later.
If you can't hold a meeting in time and you simply have no alternative but to poll the Board via email or phone, after the fact make sure to follow up with either (1) unanimous written consents from all directors pursuant to Corporations Code Section 7211(b) and/or (2) a meeting where the Board can deliberate, and ratify the prior decision, pursuant to Corporations Code Section 5032. Consult your counsel if the matter is controversial or contested.
A member recently asked to review the Association records, and asked specifically for all emails relating to Board business. Do we have to produce these emails?
No. As of July 1, 2006, pursuant to Civil Code section 1365.2, members are entitled to review all "association records" and all "enhanced association records." These are defined terms and the definitions do not include email or other correspondence. However, if a lawsuit is filed, and if the emails are relevant to the dispute and not otherwise privileged, you can bet that they will be demanded and you will have an obligation to produce them.
I have an Association where four of the directors are constantly emailing negative comments about the fifth director, behind his back. He has demanded all emails, including mine. Can he see them?
Unlike members, pursuant to Corporations Code Section 8334, directors are entitled to "all" association records. Are the director's and manager's emails a record of the association? This is an unsettled question. It depends on the content of the email. As managers, it is a good idea to have a record retention (destruction) policy dealing with emails, and stick to it. Also, remind directors that in litigation electronic discovery rules allow a litigant to make a copy of your hard drive, and emails can be located even after they have been deleted.
A director called after a member threatened to sue, and told me to delete all emails relating to the member. Should I?
Once litigation is reasonably anticipated, all relevant documents -- which includes emails -- must be preserved. If documents are destroyed a "spoliation of evidence" occurs, which may have adverse consequences for the individual destroying the evidence and the association. Develop a policy which provides for the deletion of emails on a routine basis. Print the important ones. Never write anything in an e mail that you would be embarrassed to see in open court.
I have one director who uses email to criticize and threaten his fellow Board members. In another Association the members are constantly doing that. What can I do?
There is actually a name for this behavior - "flaming," as in starting a fire. Don't throw fuel on the fire by engaging. Get out of the loop. Suggest an alternative communication method. A phone call. A meeting. Anything but an endless email thread.
If the accusations and threats are serious enough, and broadcast to a wide group, it is possible that defamation has occurred, or that a restraining order is justified. There are many examples of email codes of conduct available. If flaming is a problem in a community you manage, suggest that the Board adopt such a code.
To summarize, as a manager use email as a tool to disseminate information but remind your directors of the legal implications of its use -- and the potential pitfalls of its overuse.
Document Download: email-legal-implications.pdf