Recent events have brought board discussions via email under the spotlight, especially after the Court of Appeal's ruling LNSU #1, LLC v. Alta Del Mar Coastal Collection Community Association. The legal community has weighed in, offering insights, warnings, and advice on this topic. This article delves into the implications of the case and how boards and associations should adapt in light of the Court's ruling.
On August 25, 2023, the Court held that a series of emails among board members did not meet Civil Code § 4090's broad definition of a "Board meeting" because emailing doesn't involve members congregating simultaneously in one place for board affairs. Thus, it doesn't qualify as a formal "board meeting" as described in the Open Meeting Act. In addition, the Court held Civil Code 4910's prohibition of taking action on any item of business outside of board meetings does not apply to email exchanges among board members discussing Association business outside of a board meeting.
Specifically, the Court concluded that " 'board meeting,' as defined by section 4090, subdivision (a), is an in-person gathering of a quorum of the directors of a homeowners association at the same time and in the same physical location for the purpose of talking about and taking action on items of association business. Email exchanges among directors on those items that occur before a board meeting and in which no action is taken on the items, such as those at issue in this case, do not constitute board meetings within the meaning of that provision." (LNSU #1, LLC v. Alta Del Mar Coastal Community Assn (2023).)
Although the Court's decision affirms that board members can discuss association business via email so long as they do not take action in the email, board members should continue to proceed with caution when communicating via email. For one, unlike verbal conversations, written discussions on digital platforms, such as emails, can be archived and retrieved and, therefore, are discoverable in litigation unless the emails are attorney-client privileged communications. Moreover, the nature of email communication allows for messages to be taken out of context. As discussions evolve, threads can become long, convoluted, and interspersed with multiple topics. A seemingly harmless comment can appear damaging when viewed outside the entirety of the conversation. Lastly, the boundary between discussions turning into decisions can be blurry.
We understand the convenience of digital communication. It's impossible to revert entirely to offline conversations, especially given the geographical constraints and time-sensitive matters many boards deal with. Nevertheless, the integrity of board meetings remains paramount, and board members should ensure that technological advances do not overshadow the fundamental principles of open governance.