HOA Email: Does Your State Permit Email for Handling Homeowner Association Business?
With email so ubiquitous, it's easy for board members to drift into an email discussion about association business. Can you do that?
Here, we discuss a handful of state laws governing the use of email to conduct association business while offering insight for making sure you're using email smartly and legally.
Four states' rules on email
It feels like email has been around forever, but many state legislatures haven't yet figured out how to address email communications within homeowners associations. Here's the status of the law governing emails in a sampling of states.
- Arizona—"We don't have any legislation governing the use of email by associations," says Kristen L. Rosenbeck, a partner at the Mulcahy Law Firm PC in Phoenix, which represents associations. "This past session, the legislature brought it up, and the legislation didn't pass. In our firm's opinion, boards should be careful of email and being in violation of Arizona's open meeting law. Use email for distribution and sharing of information, but the only vote that takes place on email should be in an emergency situation or with unanimous written consent, which is permitted by the Arizona nonprofit corporation act."
- California—"Our legislature has allowed owners to opt in to receive certain electronic documents," says James R. McCormick Jr., a partner at Peters & Freedman LLP in Encinitas, Calif., who represents associations. "We also have an open meeting act. If boards are having a meeting because a majority of board members are together discussing association business, owners are entitled to attend that meeting. If they're discussing board business through email, does that constitute a meeting? There's no case law on that issue.
"There are two schools of thought," McCormick explains. "Is email a congregation of the board at a same time and place?" The first school says, 'No, so it's not a meeting.' The other school of thought is that such an interpretation violates the intent of the law. I don't know how that's going to play out. If you want to be conservative, shy away from conducting business via email. But you can take action by unanimous written consent. That doesn't violate the open meeting requirements."
- Minnesota—"There's nothing preventing board members from discussing board business via email, but current Minnesota law doesn't allow for notice of meetings or conducting meetings through electronic communications like email," says Matthew A. Drewes, a partner at Thomsen & Nybeck PA in Edina, Minn., who represents associations. "A measure could be adopted unanimously in writing, but email really isn't currently the appropriate manner for conducing official business.
"Minnesota has amended its laws regarding notices and conduct of business to allow electronic communications," adds Drewes. "That will go into effect on Aug. 1, 2010. It will allow notice of meetings to be sent out through email and people to submit ballots electronically as opposed to requiring them to be by mail or in person."
- Florida—"We don't have rules in Florida," says Lisa A. Magill, a shareholder and association attorney at Becker & Poliakoff PA in Fort Lauderdale, Fla. "But that's an issue often raised with the administrative agency that regulates community operations. Owners, if they're not privy to the email exchange, feel the board is taking action without meetings, and the purpose of having open meetings is so owners know what's going on so they can attend and participate in the business being conducted. If it's by email, there's not the opportunity for participation. So the rule is that you can't conduct business outside a meeting. The argument is that if you're emailing all the board members, you're meeting because you're talking about board issues.
"For the time being, since it's not permitted for conducting official business and there's still a requirement to conduct board meetings in such a way that members are permitted to attend, boards can use email to converse about an issue and share thoughts, but they can't reach any final decisions through email communication," Magill adds. "It's sort of like an electronically conducted work session where the board may want to talk about the measures to be discussed at the meeting to make the meeting more efficient. But it's not intended to circumvent the voting that must take place in the context of a meeting board where members are allowed to attend."