By Adam Brown, Esq., Moeller Graf, P.C.
Recent studies show that as of 2018, 95% of Americans own a cell phone of some kind, and 77% of Americans now own a smartphone. We are increasingly able to communicate instantaneously with almost anyone we know via email, messaging applications, voice calls, and even through video chat applications such as Skype and FaceTime. With the ability to conduct business through these means, Boards of Directors have the ability to streamline communication and share information quickly and seamlessly.
This Article will briefly address both some of the practical benefits, as well as some of the potential pitfalls, of using technology to conduct community association business.
The first of these practical benefits is the ability to conduct meetings when one or more members of the Board are unable to attend a live, in-person meeting. Unless otherwise provided in the bylaws of the community, the Board of Directors may permit any director to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may hear each other during the meeting. This may be just a simple telephone call, but could also include other telecommunication applications such as the ones mentioned above.
The second way that Boards often make use of technology to conduct business is by taking action outside of a meeting, through the use of email voting. In general, many communities have the necessary authority for this – although not all communities do. Under the Colorado Nonprofit Act, unless otherwise provided in the bylaws, any action to be taken at a directors’ meeting may be taken without a meeting if a notice stating the action to be taken and the time by which the director must respond is transmitted in writing to each member of the Board and each member of the Board, by the time stated in the notice either (a) votes for such action; or (b) votes against action, abstains from voting or fails to respond or vote and fails to demand that the action be taken at a meeting.
The pitfalls of voting via email come in when trying to keep sufficient records of these communications. 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 ideas to help your Board avoid these pitfalls:
First, it is always recommended that Board members set up a separate email account (other than his/her personal email account) to conduct Board business. The reason is that 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. A practical idea that many Boards utilize is to create Google or Yahoo accounts to tie email addresses to certain positions on the Board, e.g. email@example.com – which can then be passed on to subsequent officers holding that position.
Second, Boards should keep in mind that under the Colorado Common Interest Ownership Act, the Association is required to keep minutes of all meetings of the Board, including written communications among, and votes cast by, the Board members that are directly related to an action taken outside of a meeting (if permitted under the Bylaws and/or Colorado law). With this in mind, if your Board conducts voting via email, either the community manager or the Board secretary should be designated to save and file all such voting records of the Board, in order to comply with the statute and to be able to produce these records if requested by an owner. These voting records should also be filed with the minutes of the Board at the next live meeting.
With the above issues in mind, it is typically recommended that actions and decisions outside of a meeting be kept to a minimum, and to limit these situations to urgent matters where the Board cannot call a special meeting or wait until the next Board meeting to discuss the issue.
And, call me old-fashioned, but despite the convenience of technology, my experience strongly suggests that important community association issues are often addressed most positively in face-to-face meetings with your fellow Board members.
Adam Brown is an associate attorney with the law firm of Moeller Graf, P.C. in the Denver metro-area. Adam has practiced community association law exclusively since 2015. He has extensive experience advising associations in all areas of community association governance, including drafting and interpreting governing documents, reviewing and drafting contracts and real estate documents, and advising communities regarding compliance with applicable state and federal laws. Adam regularly attends Board meetings and homeowner meetings, and particularly enjoys mediating the high-conflict situations that sometimes arise in those settings through a practical, solutions-focused approach.