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E-MAIL
BETWEEN DIRECTORS
AN OPEN MEETING ACT VIOLATION?
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’m 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.
Very truly yours,
Adrian Adams, Esq.
Adams Kessler PLC
Enforcement of Agenda Law. According to one of
our readers, the Attorney General's office will not act
on violations of the agenda law since it involves the
Civil Code and not the Corporations Code. |
