Electronic Communications (Email) Among HOA Board Members
There is no disputing that email is a convenient and easy means of communication. Many homeowners association board members email each other between meetings, to share information and to discuss Association business or governance issues. E-mail should be used only to disseminate information and not to discuss Association business or issues. This is because emails are generally discoverable in lawsuits and because email deliberation or discussion on Association matters defeats the intent of Arizona’s opening meeting law.
After a lawsuit is filed, each party is entitled to “discover” evidence held by the other side. This typically involves the production by each party of copies of records and other documents. In the case of a homeowners association, the pertinent records would include, among other things, correspondence to and from the board and between board members; financial records; board and owner meeting minutes; enforcement records; reserve studies; and delinquent account information. In today’s world, most of these records are in the form of emails, texts, databases and other electronically stored information (“ESI”).
It has become common practice in a lawsuit for the lawyers to focus on ESI and to diligently seek it out both prior to and after the filing of a lawsuit. Once an association’s board becomes aware that the Association has been or is likely to become involved in litigation, it has a legal obligation to preserve all evidence, including ESI.
A party’s attorney has the right to a forensic study of the hard drives of potential witnesses. This means that home computers, work computers or personal email accounts are all subject to discovery. This will invariably provide access to information, either personal or otherwise, that a board member assumed was private or confidential but is now being subject to the scrutiny of lawyers and courts. A computer technician can duplicate all information on individual computers and computer systems, including attempts to delete or change information. As a result, board members should avoid using personal email accounts to conduct Association business and should limit the content and subject matter of email communications. (Ask yourself if you would feel comfortable having a particular email read to a judge or a jury.) It is a good idea to establish a separate email address and mailbox for association business if you are a board or committee member. This is especially true if you share an email address with your spouse. Association information that you receive should be kept confidential.
It is important to remember that no matter how many times you press the “delete” button on your computer, nothing ever really goes away and it may be able to be retrieved by sophisticated software and a persistent lawyer.
Open Meeting Law
An email discussion is not a meeting. However, deliberations via email defeat the intention behind the open meeting law. This law was first included in the Arizona Planned Communities Act in 1994 to assure transparency in the operations of the association, and to give members the opportunity to hear the deliberations of the board members. If board members discuss association business issues via email, by the time they get to the board table, their minds are often made up and the deliberations are abbreviated. The less transparency in board operations, the more your members are given a basis to believe that you are hiding something. Thus, emails should be used to distribute information to prepare board members for meetings and not to decide or deliberate issues.
The only time email should be used to accomplish board business is when action is being taken without a meeting. According to the Arizona Non-Profit Corporations Act and most associations’ bylaws, a board of directions can take action without a meeting if the board unanimously agrees in writing to the action. Approval by email is written approval of the action.
Written by: Carolyn B. Goldschmidt