by Steven S. Weil, Esq.
In our last article Step Away From That Computer we discussed many changes to the Common Interest Development Open Meeting Act (Civil Code §1363.05) requiring new ways of conducting association business. Perhaps the biggest impact concerns the use of email: the board of director shall not conduct a meeting via a series of electronic transmissions, including electronic mail. There is an exception:
Electronic transmissions may be used as a method of conducting an emergency meeting if all members of the board consent in writing to that action, and if the written consent(s) are filed with the minutes of the meeting of the board
This article discusses when and how email may be used to deal with emergencies and other tools that can be used to address emergencies without reliance on the emergency exception to the ban on email for decision making.
What is an Emergency under the Open Meeting Act?
The definition under the Open Meeting Act (Act) of an emergency warranting special decision making procedures has not changed. It exists when there are (1) circumstances that could not have been reasonably foreseen which (2) require immediate attention and (3) possible action by the board and which (4) of necessity make it impractical to give either two days notice to the membership (for executive session meetings) or four days notice (for regular or special board meetings).
These four requirements emphasize that an emergency is an event or circumstance that really wasn't planned for and must be discussed and possibly acted on sooner than two or four days (the time periods required for posting notices of board meetings on common area).
Not all emergencies will involve money, health and safety or repairs, but many will. Here are some examples of situations that in some cases could be deemed emergencies requiring fast board discussion and possible action:
As you can see, the list of topics that constitute an emergency under the Civil Code is broad. It is not, however, all encompassing. A board relying on the emergency exception to the general ban on email decision-making should be confident enough to promptly disclose the decision made and stand behind the need to do it secretly (that is, without notice). The statute itself mandates this in the two ways discussed below.
Unanimity and Post-Decision Notice in Minutes
One required safeguard against abuse of the emergency exception to the email ban is that, in addition to the four requirements listed above, the emergency action to be taken must be authorized by all directors. There is some debate as to whether all directors must consent to the initial email stating the existence of the emergency and the need for action but generally the answer to this question is irrelevant: if all directors fail to respond to the email or refuse to agree to the proposed action, it cannot be authorized electronically whether or not the situation would otherwise be deemed an emergency.
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