August 22, 2014

Trisha Harris: Preparing for Owner Inspection of HOA Emails

In today’s electronic age, many boards have flurries of e-mails flying back and forth about a wide range of association-related topics. As we have discussed in previous blogs and articles, when HB 12-1237 goes in to effect on January 1, 2013, owners will be entitled to inspect board e-mails that relate directly to decisions made by the board outside of a meeting, whether by e-mail, written resolution, phone, etc. This raises the practical questions of how boards should determine which e-mails to save, how to retain such e-mails, and other related issues. The following are some practical pointers to help your board to comply:

  • If your association has a manager, one option is to copy your manager on all such e-mails and have your manager save them electronically or print them out and keep them in a physical file. This may not be something that is currently addressed in your management company contract. In such case, the board and the management company may need to re-negotiate the contract to include this service. If your manager does undertake this role, your records retention policy will need to be revised to reflect that responsibility for the manager. If your association does not have a manager, this retention role can be filled by your secretary.
  • Set up a Google or Yahoo group for the board to use to communicate. This will keep e-mails centralized in one place, allow for storage of the e-mails, and allow for group members to change as board members change.
  • Have board members set up a separate e-mail account for board business, which is separate from their regular personal or business e-mail address. The e-mail addresses could be tied to certain positions, such as president@abchoa.com, which could then be transferred to new board members as board members change. By doing so, owners will always have a consistent and stable list of e-mail addresses, which will reduce confusion and lost communication when there are changes on the board. Having designated board member e-mail addresses separate from individual board member’s personal or business e-mail addresses will also help to protect attorney-client privileged communications to the board.  Often, a board member will share a personal e-mail address with his or her spouse. E-mails that go to that address may be viewed by non-board members, so having a designated board-business e-mail address can help to keep such communications confidential with just board members. Also, if a board member is served with a subpoena for his or her e-mails, not only will the e-mails related to board business be subject to it, but all other e-mails sent and received from that account could also be discoverable.
  • Keep decisions outside of a meeting to a minimum. As much business as possible should be done in open meetings. Limit decisions outside of a meeting to urgent situations where the board cannot call a special meeting nor wait until the next board meeting to discuss the issue.
Trisha K. Harris is a partner at HindmanSanchez and is inspired by the impact that community association law has on so many people. Her philosophy in representing associations is to help them by giving them tools to make good decisions and promoting the positive aspects of association living by blending the social and business aspects together to produce strong communities. She contributes to her firm’s blog, where this post originally appeared on July 26, 2012.

Comments

  1. Mary Salisbury says:

    If a new Email account is set up for only HOA business prior to this legislation becoming effecitve, will a records request made after January 1, 2013 be only valid for that active HOA Email account or will it be retroactive for a search of a previous Email account that was used for both personal and HOA business?

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