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In my last post, I touched on an actual decision Humphrey v. Carriage Park CAI by the Division on this matter. I am now going to address a Legal Opinion regarding “Access to Association E-Mails” put forth by the Division on March 6, 2002. The Legal Opinion provides that if e-mails are used as a form of communication between the Board and manager to handle the operation of the Association then they are subject to inspection by owners in the condominium setting. Although this Legal Opinion does not address Associations under Chapter 720 specifically, the same reasoning should apply.

The key to this Legal Opinion is that the e-mails being addressed are not amongst the Board [as in Humphrey] but rather from members of the Board to its employee, the manager. There is no requirement that a Board interact with a manager solely during a Board meeting. If that were the case, the Association would never get anything done and this would be in contravention of the statute which vests the power to manage with the Board.
 

Reading this Legal Opinion in conjunction with Humphrey one might get confused as to why e-mails exchanged by directors on their personal computers or PDAs even if they address the operation of the Association are not “official records” while those to the manager are. The answer would appear to be in the reasoning put forth in Humphrey that e-mails amongst the Board are not written communication to the Association because there is no obligation on the recipient-director’s part to read the e-mails. There is however a duty on the part of a manager to read a communication from an agent (i.e., director) of his employer (i.e., the Association). It is a subtle difference but a difference nonetheless.

The Legal Opinion goes on to note that the Division has “no regulations expressly requiring archiving e-mails, but… if the e-mail correspondence relates to the operation of the Association property, it is required to be maintained by the Association, whether on paper or electronically….“ In other words once the Board communicates with its employees via e-mail regarding the operation of the Association those records are subject to the same inspection (and thus retention) requirements as all other “official records” of the Association.
 

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On March 30, 2009 the Division issued a Final Order in Humphrey v. Carriage Park CAI a case involving among other things a request for records where the owner sought “all correspondence, e-mails to or from the Department of Business and Professional Regulation.”

In its ruling the Division stated that there was no violation for failing to produce e-mails which never became the official records of the Association.  The Division explained:

• The property of an individual director does not become the property of the Association because of his office on the Board.
• Even if directors communicate among themselves by e-mail strings or chains, about the operation of the Association, the status of the electronic communication on their personal computer would not change.
• An e-mail to an individual or all directors as a group, addressed to their personal computers, is not written communication to the Association because there is no obligation for a director to turn on a personal computer with any regularity, or to open and read e-mails before deleting them.

The Division in a footnote to its opinion stated a different decision could be reached “if the Association owns a computer on which management conducts business including e-mails…; or if e-mails are printed up and passed around for discussion at a board meeting.”

Given the ever changing trends in technology and the manner in which Associations conduct business, a Board needs to be wary that the status of e-mails as official records despite the Humphrey decision is still in flux. In other words, tomorrow, these very same e-mails which today are not official records could be. Also while a link has never been made equating IM or Twitter transcripts to e-mails this too could change as these forms of e-communication become more and more popular amongst Board members.

For more information on the role of e-communications and Association look at my May 12, 2009 post or the recent article by the Sun-Sentinel titled Boards a-Twitter about laws.

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Magazines/Newspapers, TV shows, movies, and radio programs are all a buzz about people communicating instantly through Twitter, IM, e-mails and the like. Too often we are tempted to shoot off an email or see someone on IM and shoot them a quick message and this temptation is seeping into the way in which Board members communicate with each other.

Can these communications be considered Board Meetings?
 

Florida case law has yet to answer this question. Both Florida Statutes Section 718.112 and 720.303 provide that a Board meeting exists whenever a quorum of the Board meets to discuss Association business. Merriam-Webster defines meet as “to come into the presence of”; “to come together with especially at a particular time or place”; “to come into contact or conjunction with.”  The term “meet” originally required in-person meetings and has since been expanded to include meetings conducted telephonically.

Without any legal precedent to guide us, we need to look at the word “meet” as a communication of the Board which provides for instant responses/interactions amongst the Board members. Accepting that, e-mails should not be considered a meeting since responses could take minutes or hours or even days to be sent. For the responses to be instantaneous, the Board would have had to agree to all be available via e-mail at a set date/time. IM on the other hand, is more along the lines of having a conference call and therefore could more appropriately be deemed a Board meeting when a quorum of the Board is present in the IM chat.

Even with the above delineation, the Board needs to be very careful to ensure that when a quorum of the Board is communicating outside of a properly noticed meeting that no decisions (no matter how large or small) are made. This avoids arguments in litigation that the action of the Board was improper and therefore invalid.

Stay tuned, my next posts will touch on whether these items are considered “official records” of the Association.
 

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