Published in the ECHO Journal, June 2010
“I’m in trouble at work! The association board business is taking up all my time! The homeowners send me emails 24/7 and they all want an immediate reply!”
“Answering homeowner emails is a constant task, and none of the owners are ever satisfied with my responses!”
If you’re a board member of a common interest development association, the above complaints may sound all too familiar. What is wrong with this picture and what can you do about it?
Problems with Board E-Mail Communications with Members
Here’s a list of legal and practical problems with board member replies to email communications from homeowners:
- If board members make a practice of replying to e-mail communications from members, they will soon be inundated and will have difficulty prioritizing tasks or getting anything else done. Board members are volunteers; most of them don’t sign up to be on duty 24 hours a day, 7 days a week when they run for office. As soon as the other homeowners find out how time-consuming the board’s job has become, on account of the proliferation of e-mails and their demands for immediate replies, no one else will want to run for the board, except perhaps for a few masochists.
- Replying to e-mails may create a situation in which a particular board member is making a unilateral decision without board deliberation, voting, or appropriate minutes; this circumvents the board process. Such decisions may not have the support of other board members and may sometimes be ill-considered, but they may bind the association if the board member had apparent authority to make the decision.
- When board members make decisions by e-mails rather than in open board meetings, it circumvents the intent of the Open Meeting Act, Civil Code 1363.05, which requires the board to circulate an agenda prior to each open board meeting; to allow association members to attend the open board meetings, and to allow members to address the board on matters of association business. If everything is done behind the scenes via email, the members are deprived of their rights under the Open Meeting Act.
- The practice of board members’ immediately replying to e-mails from owners creates unrealistic and never-ending expectations from the owners. Can you imagine the board members of publicly-traded corporations spending hours a day replying to e-mails from shareholders? Neither can I.
What Can Board Members Do to Get Out of E-Mail Hell?
This writer has advised some associations whose board members were roasting in E-Mail Hell to adopt an operating rule to solve the problem. Such a rule does not fall within the parameters of those that must be circulated among the Members under Civil Code 1357.100 et. seq. An example of such a proposed Rule follows. If you’re in E-Mail Hell, I recommend you try it.
This proposed rule assumes that you have a property manager. If you are a self-managed association, you can still adopt the rule but you will have to require that the members send their emails to one or more designated board members who will periodically collect, organize and prioritize them and place them on the agenda for the next board meeting if appropriate.
SAMPLE RULE
Snake Pit HOA Rule Regarding Communications with the Board of Directors
The Board of Directors of Snake Pit Homeowners Association hereby adopts the following rules pursuant to the association’s Declaration of Covenants, Conditions and Restrictions:
Findings:
- The Board of Directors consists of unpaid volunteers who donate their time to the Association.
- The Board of Directors is required by law to create an agenda for each Board Meeting, to follow the agenda, and to make decisions only at Board Meetings and only after giving all Board Members the chance to deliberate, undertake necessary study and other due diligence, and make a reasoned decision.
- Members of the Board of Directors, as fiduciaries, need to prioritize their time at Board Meetings in order to be sure to attend to the most important issues at hand.
- The Open Meeting Act, Civil Code 1363.05, requires that Board decisions be made at open meetings, except for issues that are allowed by statute to be discussed in executive sessions. All Association Members are required to be provided with an agenda of each open Board Meeting and are required to be able to listen to Board deliberations, and to provide input to the Board during the Open Forum time.
- A number of Association Members are in the habit of sending e-mails directly to Board Members’ personal e-mail accounts, in between Board Meetings, and requesting the Board Members provide an immediate response. If the Board Members were to do so, it would preclude their being able to deliberate upon the issues at hand in an open Board Meeting. Also, if the Board Members replied to e-mails between meetings, this would deprive the other Members of the opportunity to listen to Board deliberations on the issue at hand and to provide input during the Open Forum time. Further, this practice could preclude Board Members from prioritizing their time as they are required to do as fiduciaries.
- The Association employs a managing agent whose job it is to work with the Board to prepare agendas, to carry out Board directives, and to provide the Board with correspondence and with other materials requiring matters that may require attention of the Board and Board decisions.
- Counsel for the Association has pointed out that the Association is a corporation, and that it is not usual for corporate board members to be expected to reply to e-mails from their constituents outside of Board Meetings and that making decisions outside of regular or special Board Meetings may violate the Open Meeting Act.
- The Board wishes to adopt a procedure that will enable the Board Members to prepare appropriate agendas for Board Meetings with the assistance of the manager; that will allow the Board Members to discuss all Board business except for those subjects that may be decided upon in executive session at open board meetings, and that will allow Board Members to prioritize their time appropriately.
NOW THEREFORE, the Board enacts the following Operating Rule:
- All Member communications requesting Board action or response are to be directed, in writing, to the property manager. The property manager will periodically notify the Board Members of the issues and will assist them by organizing the communications and preparing an appropriate agenda for each Board Meeting.
- Board Members will no longer reply to e-mails between Board Meetings, and may block e-mails sent by Members who attempt to communicate with them directly;
- All Board decisions will be made at Regular or Special Board Meetings. The meetings will be conducted as required by the Open Meeting Act. All Board Resolutions will be voted on by the Board Members, constituting at least a Quorum, sitting at Regular or Special Board Meetings. The following matters may be discussed by the Board in Executive Session: Litigation, formation of contracts with third parties, personnel issues, member discipline, and member requests for payment plans for delinquent assessments.
This article is general in nature. It is not a substitute for qualified legal advice. Contact an attorney with expertise in common interest development law if you require specific legal advice.
Ann Rankin is the principal at the Law Offices of Ann Rankin, in Oakland, California. The firm practices mainly in the areas of common interest development law and construction defect litigation. She is a member of the Legal Resource Panel.