Reader Questions - We Can’t Email or Talk? Limits on Board Discussions Outside Meetings

Dear Mr. Richardson,

Our management company recently advised the board that they could no longer discuss any HOA business via “group” emails in between meetings, even if the emails lead to no decisions or directions – is that standard in California?

R.C., Mission Viejo

Dear R.C.,

The Open Meeting Act, at Civil Code 4910(b)(1), says boards cannot “conduct a meeting via a series of electronic transmissions, including, but not limited to, electronic mail.” For example, “texting” board discussions are also not allowed. Homeowners deserve to have boards discuss and vote in the open, with members able to observe (except for matters properly in closed session).

The statute has one important exception. Under Civil 4910(b)(2), a board can make emergency decisions by e-mail, if they have all in advance agreed in writing to allow emergencies to be handled that way. “Emergencies” are defined in Civil Code 4923, as something which cannot wait and could not have been anticipated.

E-mail is still useful and permissible to convey information. For example, a director may relay information to the board such as the price a vendor proposes. That is not deliberation. Deliberation is when another director responds to the information, which response must wait for a board meeting.

The convenience of e-mail is also its temptation. Be disciplined, and save discussion for the board meeting.

Best regards,
Kelly

Dear Kelly,

Our Board has five directors, and committees have two board members and one homeowner. Committees do not submit written minutes but sometimes make a verbal report at board meetings. My impression is that these committees do not “meet” but that the board members (and occasionally the third member) phone or email each other about anything that comes up. Without any written record or even verbal report it is impossible to determine what is happening. Are these committees required to have open meetings or report actions to the Board?

J.S., Coronado

Dear J.S.,

If the committee only includes nor more than two directors, a committee meeting is not a “meeting” under Civil Code 4090, which defines a “meeting” as a quorum of the board meeting to discuss anything within the board’s authority. If it is not a “meeting” then the Open Meeting Act does not apply. However, if the committee meeting is open to members to attend, and a third director attends the meeting, it may be argued to have become a “meeting,” triggering all the Open Meeting Act requirements, if that third director speaks.

Normally committees normally are not required to keep minutes, because their meetings normally result in reports to the board (except for the Architectural Committee, which decisions are normally appealable to the board). Their minutes, if they exist, are not “association records” subject to member inspection.

However, committees established by the board and consisting solely of directors (under Corporations Code 7212) also must keep minutes, which are required to be made available for member inspection under Civil Code 5200(a)(8). The committees you describe do not fall under Corporations Code 7212, since they have non-directors along with directors.

Committees are a great place to increase involvement of non-director homeowners. If your committees consist mainly of directors, they are not taking pressure off the board.

Hoping this is helpful,
Kelly

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®.