By Kelly G. Richardson, Esq. CCAL
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
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 directors 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 other directors 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
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
If the committee includes no 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,” the Open Meeting Act does not apply. However, if a third director attends a committee meeting, it may be argued to have become a “meeting,” triggering the Open Meeting Act requirements, since a quorum of the board is then present.
Committees are not typically required to keep minutes, because their meetings usually result in reports or recommendations directed to the board (except for the Architectural Committee, which decisions are appealable to the board under Civil Code 4765(a)(4)). 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) must keep minutes which must 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 serving with directors.
Committees are a great place to increase homeowner involvement and identify potential future directors. If your committees consist mainly of directors, they are not helping the board – get some more volunteers.
Hoping this helps, Kelly
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Managing Partner of Richardson Harman Ober PC, a law firm known for community association advice. Submit questions to KRichardson@RHOpc.com. Past columns at www.HOAHomefront.com. All rights reserved®.
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