By Jillian M. Wright, Esq.
It happens all the time: something important suddenly comes up that needs to be resolved quickly but the next regularly scheduled board meeting isn’t for weeks! The board president copies you, the manager, on an e-mail to the entire board explaining the problem asking everyone, “What should we do?!”
This article will discuss the difference between an emergency meeting and a special meeting of the board and the requirements for both so that the next time you are copied on that frantic email you will know, after assessing the facts of the situation, whether you should stop the e-mail chain immediately or reply with your opinion.
What is a “board meeting?”
Whenever a majority of the board is meeting at the same time and place (or via telephone conference) to “hear, discuss, or deliberate” upon matters within the board’s authority that is a board meeting. (Civ. Code §4090(a) and (b).)
What is an emergency?
Civil Code §4923 defines an emergency as (1) something that could not have been reasonably foreseen, (2) which requires immediate attention and possible action, and (3) for which it is impracticable to provide notice. So, if in the hypothetical above, your board president is emailing about a burst pipe currently flooding a vacant unit, that satisfies all three requirements and is likely an emergency. If the email, instead, is about a maintenance item that needs attention quickly but is not a life safety threat and can wait for a few days to be addressed, then the email chain should cease and the board should instead call a special meeting.
Special Meetings: for items than can wait a few days.
Civil Code §4920 discusses the requirements for a special meeting. If the board meets to discuss an executive session issue the association need only give two-days’ notice to the members with an agenda via general delivery (Civil Code §4920(b)(2).) Recall, however, that there are only a few items allowed to be discussed in executive session: litigation, forming third party contracts, member discipline, personnel matters, etc. (See Civ. Code §4935 for the entire list.)
If the board is discussing anything other than those limited issues then Civil Code §4920(a) requires four-days’ notice of the meeting, including an agenda, be sent via general delivery (unless your governing documents have a longer notice requirement [Civ. Code §4920(b)(3)]).
Board action v. board discussion
“But wait,” a board member might argue, “we won’t make a decision in this e-mail, we are just discussing the issue. How is that illegal?” True, Civil Code §4910 states that a board may not take any “action” outside of a board meeting and makes no specific prohibition of discussion of board matters outside a meeting. However, as mentioned above, the definition of “board meeting” includes when the board meets to hear, deliberate or discuss. Indeed, the purpose of the Open Meeting Act (§4900 et seq.) is for the membership to be invited to see the deliberative process by which decisions are made for their community. We suggest erring on the side of caution; just call the meeting.
When are emails allowed?
Sometimes, in an emergency, emails are the most efficient way to take care of board business. So, in those cases the board must act within a few set rules: (1) it must be an emergency, as defined above, (2) all directors must consent in writing to act by email in an emergency situation, and (3) written consent must be filed with the minutes of the next board meeting. So if you forward the board a settlement offer with a response due a week from now and a board member excitedly replies asking everyone’s opinion, that email thread should be stopped.
If your board is quick to define everything as an emergency, kindly remind it of the requirements noted above and remind the board that a member may bring civil action against the association (and potentially be entitled to attorneys’ fees and costs) for a board’s acts outside of the Open Meeting Act.