Question: I read your recent blog about directors conducting business by e-mail. I do not really understand how this new law changes the previous law. Can you shed any light on this? L.A. (via e-mail)
Answer: Good question. The Florida Condominium Act was amended July 1, 2014, to add the following language to the statute: “Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail.” For reasons I do not know, the Legislature did not similarly amend the statutes applicable to cooperatives and homeowners’ associations (the desirability of uniform laws governing the procedural aspects of the various types of housing associations in Florida is a topic for another day).
Let’s break the new law down into its basic components. First, the law says that directors can use e-mail “as a means of communication.” I am not aware of anyone ever having argued otherwise, so I would say this part of the new law is simply a statutory codification of generally accepted practices. The law now specifically states that directors “may not cast a vote on an association matter via e-mail.” While I would have also thought that the law to have been generally accepted on this point, I suppose there is benefit in a statutory confirmation that e-mail voting is specifically prohibited for condominium association boards.
Where does this leave us? Probably, with many of the same unanswered questions that existed before the new law was passed.
For example, the new law does not specify whether e-mail communications between directors are, or are not, “official records” of the association, and thus open to inspection by unit owners. Does it matter if only the directors’ personal devices are involved in the transmission and reception of the e-mails? If e-mails are official records, how are they to be kept and made available for inspection? Must e-mails be made available if they contain protected information under the statute?
Another issue that is often encountered is whether a particular thread of e-mails collectively constitutes a “vote”, or whether the e-mails are simply a series of communications to obtain input and support for an intended course of action. One is illegal, one is not.
Let’s consider some examples. If the board of directors wants to terminate the management contract with ABC management company and hire XYZ management company, a board vote would typically be required. While the board members can debate to their hearts’ content the relative merits of ABC versus XYZ through e-mail, they cannot vote on either firing ABC or hiring XYZ by e-mail. This can only be done at a meeting.
On the other hand, let’s say that the pool pump at the community swimming pool burns out. A new pump needs to be purchased. This would typically be an item that would not require board approval, but would likely be a decision for the manager, perhaps in consultation with the board president, to make. Let’s also say that the pool contractor tells the manager that he can replace the existing pump for a thousand dollars, or provide a much superior, state-of-the-art type of pump for an extra five hundred dollars. This judgment would probably be within the manager’s decision-making authority, but the manager decides to get the input from all of the board members by e-mail, to make sure they would support whichever course is chosen. In this case, at least in my opinion, no “vote” has been taken, but much like the first example (changing management companies), the decision-making process was conducted solely by e-mail. Is this a distinction with a difference?
Undoubtedly, these are issues that will play out in the courts, the condominium administrative agency, and perhaps through legislative tweaks in the coming years. In the meantime, remember that e-mails are “forever”, and to never hit “send” if you are writing something that you would not want the whole world to see.