– By Laurie S. Poole, Esq. (originally published in January 2000)
Our October, 1999 newsletter contained the first part of this series, focusing on homeowners associations having web sites. In this part 2, we will address today’s “high tech” form of communication: e-mail, chat rooms, conference calls, electronic video screening, etc., and how it potentially impacts associations.
E-Mail Communication Among Board Members
These days, almost everyone has an e-mail address which makes communicating among several people quick and easy. Many association board members find that it is convenient and expedient to communicate with other board members via e-mail regarding issues pending before the association. One concern is whether these communications constitute a board meeting, thus requiring notice to members.
California Civil Code Section 1363.05 (The Open Meeting Act) provides that a “meeting” includes any congregation of the majority of the members of the board at the same time and place to hear, discuss or deliberate upon any item of business scheduled to be heard by the board. On its face, simple e-mail communications back and forth between individual directors is not a “meeting” under this section. However, certain on-line service providers now offer “chat rooms” or “instant messenger” services where a number of people can communicate instantaneously on-line. These types of “chat rooms” could result in an improper “meeting” if a majority of the board was discussing association business.
Additionally, discussing association business in these “chat rooms” would violate Civil Code Section 1363.05 as it excludes the rest of the membership from attending the “meeting.” Regardless of the forum, board members should be cautious about how much e-mail communication is taking place among more than two board members regarding association issues so that no improper meetings take place without notice to the membership. Eventually, it is possible that “notice” to members could be given before the “chat room” discussions take place, however, the association would likely have to show that each member had reasonable accessibility to the discussion (i.e. enough members had personal computers or access by computers in the local public library or other location.)
Meetings Using Conference Calls, Electronic Video Screen, Etc.
California Corporations Code Section 7211 was recently amended to address “high tech” forms of communication at board meetings. Under that code section, board members may participate in a meeting through the use of “conference telephone, electronic video screen communications, or other communications equipment.” However, the statute provides that participation in a meeting using telephone conferencing results in the board member being “present in person” so long as all members participating in the meeting can “hear” one another. For a board member to be “present” when using electronic video screen communication or other communications equipment, each member must be able to communicate with all of the other members concurrently and to be able to fully participate in each aspect of the meeting (e.g., proposing motions, objections, questions, etc.). A common chat room as discussed above, where each person can communicate concurrently with the other, would arguably meet this requirement.
Association boards who wish to use one of these methods to have a board member present at a meeting would need to take steps to ensure that the homeowners who attend are also able to communicate with the board members who are “present” through these devices. For instance, when using a conference call, the phone should be on speaker and placed in as close proximity to the attendees as possible. Where used, electronic video screens could be placed so the homeowners, as well as the board members, can see and hear.
With today’s rapid advances in technology, it is conceivable that board meetings or even annual meetings will be held on-line, with Internet access available to all homeowners. Until that time, however, associations must ensure that in using these “high-tech” devices, they are not jeopardizing the privacy and rights of their communities, and the open meeting requirements.