E-MAIL BETWEEN DIRECTORS
AND ROUTINE ADMINISTRATIVE DECISIONS

E-mail is a technological advance which allows board members to easily communicate with each other about association related matters between meetings. Are such communications legal? Do they violate the Open Meeting Act? The answer depends on the kinds of decisions the directors are making in their e-mails.

Violation of Open Meeting Act? The "Open Meeting Act" defines meetings of the board to include any gathering of a majority of directors 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. Civil Code §1363.05(j)

Some argue that e-mail communications between a majority of directors do not violate the Open Meeting Act because the directors are not gathering at the same time or in the same place. The directors are not meeting at the same time because the interval between their e-mail communications may be minutes, hours or even days. The location argument is similar since directors are sometimes scattered around the world.

Even so, such e-mail deliberations often take place on matters that appear on the agenda for the next board meeting. Therefore, such activity violates the spirit of the Open Meeting Act even though it may not violate the letter of the law. Accordingly, e-mail deliberations on agenda items should wait until a properly noticed meeting can be held, so owners can see and hear the deliberative process.

Routine Administrative and Operational Decisions. In my opinion, routine administrative or operational decisions which are not scheduled to be heard by the board may be made via e-mail. An example is the following:

Dear Fellow Directors: I am thinking of planting ten flats of flowers in front of the clubhouse. The eight flats we planted last year looked a little thin. What do you think? Sincerely, President Betty

In most associations, these kinds of decisions do not warrant a board meeting. If the association had a manager, the manager would normally make this decision on his/her own or in consultation with the board president. Since routine administrative or operational issues are not policy questions which must be formally debated and decided at board meetings, these matters may be discussed and decided via email.

Summary. In my opinion, e-mail communications between a majority of directors on operational or administrative matters which are not scheduled to be heard at a board meeting are outside the scope of the Open Meeting Act.

If the Act is interpreted to require that such decisions only be made at board meetings, then directors (who are volunteers with work and family obligations) could be forced to call weekly meetings in order to formally discuss and vote on a multitude of mundane operational matters. This would significantly hamper day to day operations and would impose an intolerable burden on directors. Although the courts have not yet ruled on this issue and one cannot predict with certainty how such a case would be decided, I do not believe that such an impractical result was intended, or is required, by the Act.

Litigation. Boards should always be cautious what they say in their e-mail communications. E-mail between directors can be subpoenaed as evidence in litigation.

Updated 5/14/2008