Reader Questions - Do We Pretend Email Doesn’t Exist?

Dear Kelly,
Recently our manager sent the following to the board: “Can I give the homeowner approval to install?” This responded to a board member submitting, on behalf of a homeowner, [a requested architectural item] for board approval. I believe the manager’s e-mail and response constitute an e-mail meeting of the board. What say you?

Regards,

M.D., Corona

Dear M.D.,

Yes, that is deliberation by email, which is specifically prohibited by the combination of Civil Code 4910 and 4930. Board approvals of architectural applications should occur in board meetings, with the item announced on the agenda. The item does not appear to be an emergency, and could have been reserved for the next meeting – unless your board does not meet monthly, in which case a special board meeting would be necessary.

Thanks (for bringing up this common Open Meeting Act violation),
Kelly

Dear Mr. Richardson,

I’m the Treasurer of a [large] HOA. Many people reside here for the winter season, or rent out their units. Our board is scattered [around the state].

The part [of your article about email communications] that concerns me is “HOA boards are not permitted to discuss HOA business in e-mail.”

I believe that taking action is different than discussion. We would be unable to manage our association if we could not communicate with each other via e-mail. We couldn’t compose and edit the monthly newsletter, instruct our manager to solicit bids, or update the directors concerning delinquencies.

Can we communicate about anything via e-mail? Is there a difference between discussion and action?

Thank you,

M.R., Palm Springs

Dear Kelly,

A meeting [under Civil Code Section 4090(a)], is “at the same time and same place.” How can email be interpreted as being at the same time and place? An email between directors and between meetings might be answered over 5 days from 5 different countries. I believe the intent of the legislature was to curtail actions without a meeting, which everyone agrees got out of control.

R.P, Valencia

Dear M.R. and R.P.,

The legislative attitude toward associations has long been that they should be treated as public governments. The Brown Act bans discussion outside meetings of public entities, but HOAs, as private ownership corporations, are not subject to the Brown Act. Consequently, the legislature a few years ago supplemented the Open Meeting Act by cracking down on discussions of HOA topics outside of board meetings. The combination of Civil Code Sections 4910(b) and 4930(a) close the loophole of electronic discussions.

However, not all emails between directors are banned. Messages conveying information or questions are permissible. The problem arises when a director responds to the information and begins discussing it. At that point, deliberation has commenced, instead of being reserved for the board meeting.

Routine matters such as newsletter drafting or ordinary repairs can be handled by delegating authority to a committee, a director, or the manager. Decisions about seeking bids should be handled in the board meeting.

Many (including me) think the Open Meeting Act may have gone too far. However, in fairness, the law’s laudable intent is to move board discussions and decisions into board meetings. Association members deserve to hear board deliberations, except for closed session items.

Thanks for your questions,
Kelly

Read California laws at www.leginfo.legislature.ca.gov

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.