E-Mails, E-Mails, & More E-Mails. What's a Board to Do?

Here is the good news. There is no law that prohibits the use of e-mail as a communication tool for boards in planned community or condominium associations. E-mail communications are restricted for government bodies by A.R.S.§ 38-431.01. Specifically, the statute states that “all meetings of any public body shall be public meetings…” “Meeting” is defined in A.R.S.§ 38-431 as “the gathering, in person or through technological devices, of a quorum of members of a public body at which they discuss, propose or take legal action, including any deliberations by a quorum with respect to such action.” However, community associations are not public bodies, and this law does not apply. This is a common misunderstanding of owners and some directors.

A board member can communicate with his or her fellow directors in person, in writing sent by regular mail or by fax, by telephone, and by e-mail. If, however, a quorum of the Board is in the same place (or on a conference call) discussing association business, that is a meeting and is prohibited by statute unless the discussion is limited to consideration of: 1) legal advice, 2) litigation, 3) personal, health or financial information of owners or employees, or 4) job performance or similar information for employees of the association or its contractors.

Even though there is no legal restriction on the use of e-mail by boards, there are a couple of reasons for concern about too much reliance on e-mail. First, there is a widely held belief that when directors use e-mail to communicate between meetings, it can turn the subsequent board meeting into a gathering where nothing is discussed for the benefit of the owners in attendance because the debate has already occurred by e-mail. This concern is not exclusive to the communication medium of e-mail. Before e-mail, a director could have separate conversations with every director and have the same result. The meeting contains little “back and forth” because the directors had communicated extensively about the topic in advance of the meeting but never in a setting where a quorum was present. Today, e-mail often is blamed for these types of board meetings because it is ever-present and instantaneous.

Because of the appearance of pre-determined decisions by boards without hearing from members at a meeting, the Arizona legislature has recently considered (but failed to pass) legislation specifically making communication by e-mail a “meeting” similar to the law that applies to government bodies. So long as owners complain about the appearance of a lack of debate by the board, and the belief that their voices are not being heard because the board has pre-determined their position by e-mail, the legislature will likely continue to revisit this topic until it does become law someday.

In summary, the current law does not prohibit communication between directors by e-mail. There is a concern that too much communication can cause members in attendance at board meetings to wonder if e-mail is denying them the opportunity to watch “governance in action” at board meetings. We recommend that boards use e-mail when necessary, but to limit the use of e-mail. It is bestto make decisions and conduct business at board meetings to the greatest extent possible, where at least a quorum is present and the homeowners have an opportunity to attend and listen.