A longtime piece of civil code that kept many HOAs in California from governing via email has been upended by an appellate court ruling.
Within the Davis-Stirling Act, there is the “Open Meeting Act,” which contains requirements regarding transparency in HOA government.
For years, many HOA lawyers have discouraged client boards from deliberating HOA issues via email because it seemed to violate the Open Meeting Act.
Civil Code Section 4910 specifically bars taking action outside of board meetings except for emergencies, and bars conducting meetings via electronic mail. This seemed to also ban board email discussions. Now much of that has changed.
On Aug. 25, 2023, an appellate court in San Diego County upheld a trial court’s decision in favor of Alta Del Mar Coastal Collection Community Association, which was sued by two property owners who alleged that business conveyed by the board using emails violated the Open Meeting Act.
The court ruled that exchanging emails is outside the Civil Code 4090’s definition of a board meeting since the definition includes in-person or teleconference gatherings, and because the directors were not “congregating” when they sent the emails.
The court further ruled that discussing HOA business via email is not barred under Civil Code 4910’s prohibition of taking action outside of board meetings and that action, which means voting, is different.
Despite the ruling, HOA boards and managers should avoid email deliberations for several reasons.
First, this case presents a new interpretation of the term “board meeting.” The subject also could be taken up by the state Supreme Court, which could weaken or overrule the appellate court decision.
Second, email deliberations are not subject to member review, and such emails are not included in the documents, which homeowners may request to review. Consequently, the board’s transparency suffers, as it could prove all too easy to pre-discuss matters on upcoming agendas. Homeowners will trust the board more if they know the board has the discipline to wait until meetings to discuss things.
Third, emails are evidence. Emails are not privileged unless legal counsel is involved. They can be forced to be disclosed by a subpoena or litigation disclosure demand. Emails, unlike oral remarks, are a permanent record of what someone says. Therefore, directors must be far more restrained in their written comments – what would a judge or jury say if they read that email?
Fourth, and not least, do directors want to be on duty 24 hours, 7 days a week? Strict compliance with the Open Meeting Act helps to protect directors’ off-duty time. I often receive emails from client directors feeling intimidated or even harassed by other directors who bombard their board colleagues with email suggestions, ideas and opinions at all hours.
Often clients tell me they minimize open meeting discussions due to member disruption. My response is that the HOA needs to get its meetings in order, and should avoid the temptation to avoid open discussion.
This new judicial interpretation should not encourage opening the floodgates for boards to discuss anything and everything by email and then wait for the formality of a board vote in the board meeting. Consider using email only to relay information and not to relay opinions, saving the discussions for the board meeting.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit column questions to kelly@roattorneys.com.
