(2023 Update)
Many of you already have a copy of an earlier version of this article, contained in our firm’s “How to Be a Good Director” handbook. Recently a California Court of Appeals issued a ruling (LNSU#1, LLC et al. v. Alta Del Mar Coastal Collection Community Association (2023) 94 CA5th 1050 which overrides most of the restrictions on email communications between directors. While there is always a chance that another court, or the California legislature, may change the ground rules yet again, for the moment there is good news.
In the Alta Del Mar case, several homeowners attacked various actions of the board, including the board’s practice of discussing board business outside of meetings by means of emails. The trial court sided with the association, and the appellate court agreed.
The evidence showed that the board members discussed via email how they planned to rule on plaintiffs’ landscaping applications, agendas, alleged violations of the governing documents, criticisms of homeowners, and enforcement proposals. After wading through the homeowners’ other claims of errors,[1] the court concluded the email exchanges did NOT violate the Davis-Stirling Open Meetings Act:
[W]e conclude a “board meeting” as defined by [Civil Code] section 4090, subdivision (a), means a gather of a quorum of the directors of a board of a homeowners association at the same time and in the same physical [emphasis added] for the purpose of transacting any matter of association business that is within the board’s purview…We think it is clear from the words chosen that in enacting section 4090, subdivision (a) the Legislature had in mind the traditional board meeting of a homeowners association, i.e., one where the directors gather in the same room with homeowners to talk about and to act on matters of association business. Hence, by sending e-mails to one another through cyberspace, often hours or days apart and from different homes and offices, the Association’s directors did not simultaneous gather in one location to transact board business, and therefore they did not conduct a “board meeting” within the meaning of [the statute]…
The court expressly rejected reading the OMA as though it were part of the Brown Act: “Had the Legislature intended to prohibit [discussions of board business outside of a noticed meeting], it knew how to do so.”
Are there problems with the court’s decision? Possibly. The court focused entirely on the portion of section 4090 which says a board meeting occurs when a quorum of board members meet “at the same time and place” rather than the following portion which defines a meeting’s purposes to include “hear, discuss or deliberate” on board business. Further, the Court read section 4910(b), which precludes the board from holding meetings via email (except in emergencies), as proof that the Legislature did not consider such email confabs to constitute meetings: this is a strained conclusion, since section 4910 taken as a whole, clearly contemplated board members attempting to meet via email, and attempted to make clear such a “meeting” was not permissible.
Where does that leave us today, 2023? By virtue of the Alta Del Mar decision, there is a defense to the charge that “hear[ing], discuss[ing], and deliberat[ing]” on board business by email violates the Open Meetings Act.
Nevertheless, we urge caution in using emails for association business for the following reasons:
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- This endorsement of email communications could be gone very quickly if the Legislature steps in to clarify its intent to proscribe email discussions of board business.
- Email communications all too often encourage an informality of exchange, which in turn, sadly seems to lead to badmouthing owners. Do not assume that because email communications might not violate the Open Meetings Act that those very emails are privileged or confidential: they are not (unless directed to counsel in eliciting legal advice) and the discovery process in litigation nearly always hones in on email exchanges at an early moment. Remember too there are other causes of action a homeowner might have, unrelated to the Davis-Stirling Act, which can arise from badmouthing an owner via email (g., unlawful discrimination/discriminatory animus, defamation, invasion of privacy.) Remember: What you write today is tomorrow’s Exhibit A.”
- Think twice before you press “send”. And think several more times before you hit “reply to all” as you may inadvertently send that email to homeowners in the chain before the board members began to discuss the issue amongst themselves.
- Even if you CAN do it, SHOULD you discuss board business via email? Isn’t the whole intent of the Open Meetings Act that the bulk of association business be carried on in the open, so much as possible? Certainly, discussions of agendas, date, time and place of meetings, and dissemination of necessary new information would appear to be (both before and after the Alta Del Mar decision) appropriate, wisdom dictates that the less a director uses email to discuss board business, homeowner personalities and conflicts, vendor qualifications and the like, the better.
[1] The homeowners raised other issues as to which an appellate decision would have been helpful—handling decisions which should have been made in open session material in executive session, whether multiple violations of the same portion of Davis-Stirling merited multiple fines, or not, the consequences of failure to take minutes of an executive session—but for procedural reasons, the appellate court did not issue opinions on these