Listeners of our Condo Craze and HOAs radio show know that we just discussed a new law for condominium associations that lets directors communicate, but not vote, by e-mail.
On its face, I don’t find it objectionable that directors can communicate by e-mail. Of course board members need to exchange ideas, thoughts and concerns and it is often times not practical to do so only at a properly noticed Board meeting.
The problem I have is that at present, no matter how many times the Board members communicate to each other from their computers about the operation of the association, these e-mails are not “official records” of the association and therefore cannot be seen by any of the other unit owners. Here’s why….
In Humphrey v. Carriage Park Condominium Association, the arbitrator ruled as follows in regards to a unit owner’s request to see e-mails amongst and between the board members:
The e-mails requested in this case are those existing, if at all, on the personal computers of the individual directors. These are not official records of the condominium association. The property of an individual director does not become the property of the association because of his office on the board.
Just as a statement by an individual director cannot bind the board, an e-mail from or to a director, is not a record of the association. Even if directors communicate amongst themselves by e-mail strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change.
Similarly, an e-mail to an individual director on to all directors as a group, addressed only to their personal computers, is not written communication to the association. This must be so because there is no obligation for a director to turn on the personal computer with any regularity, or to open and read e-mails before deleting them.
This conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.
I disagree with the opinion. Why should it matter on what computer the e-mail was written on? It’s either relevant to the operation of the association as required by statute, or it isn’t. According to this opinion, board members can discuss crucial terms of a contract including price, make modifications to that contract, and despite the fact that these e-mail communications clearly effect the operation of the association, unit owners are not allowed to see them, simply because of where the person was drafting the e-mail at the time it was sent. If it was sent from their home, it’s off limits. But, if it was sent from a desk top computer in the office, unit owners can see it. Makes no sense.
I don’t want the personal computers of directors searched. That is not what I am suggesting. However, if board members are going to make certain decisions by e-mail, and discuss the operation of the association by e-mail, they should be aware of the fact that these communications are not subject to some sort of privilege and can be seen by the other owners. What possible expectation of privacy can a director say they were entitled to when writing to another director about an association matter?
I’m in favor of making these communications available for the other owners to see. Am I off base or is anyone else out there with me?