New Appellate Court Ruling Allows Board Email DiscussionsSep 11, 2023
There is a transparency law within the Davis-Stirling Act called the “Open Meeting Act,” containing requirements regarding governance transparency. For years, many HOA lawyers have discouraged their clients’ boards from deliberating in email regarding HOA issues, because it seemed to violate the Open Meeting Act. The Act at Civil Code Section 4910 bars taking action outside of board meetings except for emergencies, and bars conducting meetings via electronic mail. This seemed to bar board email discussions, but that has now changed.
On August 25, 2023, the appellate court in San Diego County issued its opinion in LNSU #1 LLC v. Alta Del Mar Coastal Collection Community Association. Because the decision is “certified for publication” it is precedent throughout the state. In the LNSU #1 case, 2 of the owners in a 10-unit HOA challenged the board’s discussion of several HOA business items in emails, including items involving the two appealing homeowners.
The court ruled that exchanging emails is outside the Civil Code 4090’s definition of a “board meeting” since the definition includes in-person or teleconference gatherings, and because the directors were not “congregating” when they sent the emails. The court further ruled that discussing HOA business via email is not barred by Civil Code 4910’s prohibition of taking action outside of board meetings but that action, meaning voting, is different.
However, HOA boards and managers should avoid email deliberations for several reasons.
First, this case presents a new interpretation of the term “board meeting” definition. Other appellate courts in California could take a different interpretation. Additionally, the subject might be taken up by the state Supreme Court and weaken or overrule this ruling.
Second, email deliberations are not subject to member review and such emails are not included in the documents, which homeowners may request to review. Consequently, the board’s transparency suffers, as it could prove all too easy to pre-discuss matters on upcoming agendas. Homeowners will trust the board more if they know the board has the discipline to wait until meetings to discuss things.
Third, emails are evidence. Emails are not privileged unless legal counsel is involved. They can be forced to be disclosed by subpoena or litigation disclosure demand. Emails, unlike oral remarks, are a permanent record of what someone says. Therefore, directors must be far more restrained in their written comments – what would a judge or jury say if they read that email?
Fourth, and not least, do directors want to be on duty 24 hours 7 days a week? Strict compliance with the Open Meeting Act helps to protect directors’ off-duty time. We often receive emails from client directors feeling intimidated or even harassed by other directors who bombard their board colleagues with email suggestions, ideas, and opinions at all hours.
Often clients tell us they minimize open meeting discussions due to member disruption. Our response is that the HOA needs to get its meetings in order, and should avoid the temptation to avoid open discussion.
This new judicial interpretation should not encourage opening the floodgates for boards to discuss anything and everything by email and then wait for the formality of a board vote in the board meeting. Consider using email only to relay information and not to relay opinions, saving the discussions for the board meeting.
The Firm’s attorneys encourage HOA boards to consider not only whether the law allows some action, but also consider whether the board should take that action. The trust of the neighbors in the HOA is critical to its successful governance.
Richardson | Ober and its legal professionals stand ready to guide your association toward its best future.