IS BOARD MEMBER EMAILING A VIOLATION OF THE OPEN MEETING REQUIREMENTS?
With more frequency I am being asked whether, and to what extent, Board Members are entitled to communicate with each other by email. A typical questions that is asked is: "After a solicitation of bids, we received a couple of bids for a major project in the community and the board members have been given a copy of the proposals. There then ensued an email exchange amongst the board members analyzing and discussing the bid packages. In order to get the project going before the next board meeting which is three weeks away, the President wishes to poll the board members on which contract to accept in order to move forward with the project. is this permissible?"
The answer is clearly no, but the subsidiary question is, if that is the case, how much discussion can be held by board members via email (or telephone conference call, for that matter) without violating the open meeting requirements?
The starting point for the answer is to read §55-510.1 of the Virginia Property Owners Association Act or §55-79.75B of the Virginia Condominium Act, both of which were amended in 2001 to include the following language:
"All meetings of the board of directors shall be open to all members of record. The board of directors shall not use work sessions or other informal gatherings of the board to circumvent the open meeting requirements of this section. Minutes shall be recorded and shall be available as provided below etc."
So, are you having a "session" or "gathering" when you do emails? One could make an argument that you are circumventing the open meeting requirements. One could also argue it’s not a "gathering" or a "work session". If a majority of the board participates in the email discussion, then there is a quorum and, arguably, a meeting of the board. You are probably not in violation if no votes are taken and the subjects discussed are on the agenda for discussion and "rediscussion" at a face-to-face regularly called meeting where minutes are taken. But one could argue that the secrecy from the members afforded by the email "discussion" is exactly what the 2001 amendment to the law was trying to prevent.
Please note that the same sections of the Condominium Act and the Property Owners Association Act also contain the following provisions which have been added within the last three years:
"If a meeting of the board of directors is conducted by telephone conference or video conference or similar electronic means, at least two board members shall be physically present at the meeting place included in the notice. The audio equipment shall be sufficient for any member in attendance to hear what is said by any board member participating in the meeting who is not physically present.
"Voting by secret or written ballot in an open meeting shall be a violation of this chapter except for the election of officers."
It is obvious from these recent amendments that the General Assembly is intent on a high degree of openness.
Further, the Virginia Supreme Court has considered a case involving emails amongst City Council members. The Court decided that where there were fast and nearly immediate email responses back and forth it constituted a meeting which violates the Freedom of Information Act which governs public bodies.
I think a reasonable test for whether or not the intent of the statutes is being violated is this: Assume that one board member does not have email. Is there anything that was stated in the email exchanges that would not likely be repeated or is not repeated in an open discussion later which would be important for that board member to know and consider in coming to his or her own decision on how to vote on the matter? If the answer is "yes", then clearly the purpose of the open meeting requirement has probably been violated and both that board member and any other members of the association who would be present to listen to the deliberations of the board would be deprived of knowing important information that was utilized in arriving at a decision of the board. This would defeat the purpose of open meetings. It is easy for email exchanges to go too far.
As one can easily observe, these provisions are not easily interpreted and working with these laws calls for good judgment on the part of officers and managers of associations to insure that the requirements of the open meeting law are respected.