Emails #1. I read your interpretation of the LNSU#1 v. Alta Del Mar and I think it's incorrect. The court didn't say that director email exchanges were OK; it only said they don't fall into the definition of 4090(a). 4910(b)(1) is clear that board email meetings shall not be conducted. -Terri S.
Emails #2. It is mind-boggling that it took 17 years for an assumption to be corrected. It is impossible to run associations with budgets of several hundred thousands to millions of dollars with one meeting a month. It would be impossible to run a lemonade stand that way. –David J.
Emails #3. We have five senior housing developments and all five boards hold a joint meeting on a quarterly basis to discuss common issues and problems. Our board always posts an agenda for these meetings if more than a quorum of our directors plan to be present. Do we need to continue posting an agenda with the time and location of the meeting, or does the court’s ruling regarding emails effect our meetings? -M.S.
RESPONSE: You should continue posting notices. Your quarterly meetings qualify as board meetings. In the words of the court, "'we conclude 'board meeting,' as defined by section 4090, subdivision (a), is an in-person gathering of a quorum of the directors of a homeowners association at the same time and in the same physical location for the purpose of talking about and taking action on items of association business." (LNSU #1 v. Alta Del Mar.)
Emails #4. So pleased that newer language will help boards of directors. -Marilyn B.
Emails #5. Are in-person communications between board members at a community get-together or at our community mailbox, allowable? Is this much different than email discussions? -Mike B.
RESPONSE: The entire board can get together, have a beer and talk about sports without violating the Open Meeting Act. If the conversation veers into items of business, the gathering suddenly turns into a board meeting.
Although...I am sure some will notice that the court said, "same physical location for the purpose of talking about and taking action on items of association business." If the gathering of directors at the mailbox does not involve taking action on association business it might not be deemed a board meeting. I take a more conservative approach and recommend directors not gather at the same time and place to talk about association business.
Emails #6. I like this ruling. -David K.
Emails #7. I strongly disagree that board decisions made are the only ones not allowed. If the rest of the association members cannot see the discussions, this decision robs the members of seeing what board members say and they they react to a given item. It also makes it difficult to decide who to vote for in the next election! Totally unacceptable for the rest of us! -Angela D.
Emails #8. The following are concerns that directors should be cognizant of before communicating with each other by email.
- There is no board member privilege. All emails are subject to discovery. One claim we had a few years ago involved seven board members who generated over 125,000 emails over an issue that became the subject of litigation. The carrier had to pay $300,000 for attorneys to review the emails. The policy was non-renewed.
- If directors use their personal email account, their emails will be reviewed by lawyers to find ones related to the subject of litigation.
- Directors who use their business emails should be concerned that their employer may receive a subpoena for a production of your emails. An employer is not going to be happy that (1) you have been using business email for personal matters, (2) that their lawyers will need to review to separate business content from personal content.
- Because they are discoverable, directors must make sure their email does not include abbreviated phrasing such as LOL or OMG, and does not include anything they would not want turned into a large courtroom exhibit for a jury and spectators to read.
- We all know people say things in an email they would not say in person. There is no way for directors to ensure their emails are not being forwarded to people not on the board.
All directors should use an email system that only includes board members, is password protected, and must be delivered to every board member. In the event of a lawsuit, an attorney only has one place to go to review the emails.
Joel W. Meskin, Esq., CIRMS, CCAL FELLOW, MLIS, EBP, McGowan Program Administrators – Specialized Insurance Programs
In our last newsletter, a reader said his association extends the life of components by performing preventative maintenance. He asked if Reserve Study components could be revised to reflect the longer lives. Following are responses by two Reserve Study specialists.
Reserves #1. Updated Reserve Study Standards put an emphasis on Reserve Study providers (and by extension association boards and managers) relying on the advice of subject matter experts (SMEs). That may include balcony inspections, infrastructure inspections, elevator evaluations, roof inspections, etc. Reserve Study providers, as generalists, are advised to incorporate the advice of a SME. So if a SME provides wise counsel on roof life expectancies, a Reserve Study provider should incorporate that information into the Reserve Study, eliminating any inconsistencies.
-Robert Nordlund, PE, RS, Founder and CEO of Association Reserves, Inc.
Reserves #2. If we receive differing opinions on a component from competent professionals, specifically the estimated useful or remaining life expectancies, we typically go with an average of the estimates, or may use the lesser, as reports are designed to be conservative. It’s also common to do that with costs, using the higher of the estimates as a cushion against unforeseen circumstances.
Scott Clements, RS, PRA, CMI, CEO of Reserve Studies, Inc.
From Riverside. Adrian, just a note from Riverside. Even though we no longer have a condominium “weekend” residence, I continue to enjoy reading your firm newsletters. As I recall, more than 20% of Californians live within the governmental structure of associations – which I think is not generally known or considered by those who do not have to confront (on occasion) the experience of extremely local “control.” Your news is always interesting and thought-provoking. Thank you for keeping me on your subscriber list!!!!! -Joseph M.