Source: Adrian J. Adams Esq.
QUESTION: With all the news regarding Hillary’s emails, should our board set up a dedicated email account for official business?
ANSWER: Unlike federal employees, there is no requirement that boards use “official” email accounts. However, there are practical reasons for doing so.
1. Litigation. Even though homeowners do not have a right to inspect emails between directors, that changes when litigation is filed. As part of discovery, a director’s emails can be subpoenaed. When board members use personal accounts for HOA business, their personal emails can end up in plaintiff’s hands for the world to see if not carefully sifted from the record. That means sleepless nights deleting 30,000 “private and personal” emails, making it look like the board is hiding something. When people start deleting emails, plaintiffs and judges are understandably skeptical.
2. Confidential Information. Another benefit to an “official” HOA account is it becomes less likely that confidential HOA business will be viewed by family members. Many couples share email accounts and see each others’ communications. A family member is less inclined to log into a board member’s HOA account and read confidential communications.
3. More Cautious. Finally, using an HOA account should make directors more careful about what they write since emails are no longer personal but rather business emails that belong to the association. Knowing the emails are retained by the association should make directors more cautious and businesslike in their communications. That raises an issue that needs clarification–conducting business by email.
No HOA Business. By statute, boards cannot conduct association business by email. (Civ. Code §4155.) That does not mean directors are prohibited from emails altogether. Directors are allowed to (i) conduct emergency meetings, (ii) send emails to management and vendors, (iii) send emails to legal counsel, and (iv) send administrative emails to each other about meeting dates and times. For a more complete discussion, see “Email Meetings.”
RECOMMENDATION: Boards should reserve a domain name for their associations and establish an email account for directors. Setting up an account is easy and the cost modest. Email accounts should not be a generic “president@myfriendlyhoa.com” since they need to be terminated once a director is no longer on the board. Rather, use the director’s name, “j.smith@myfriendlyhoa.com.” Finally, boards should adopt an official “Email Policy” for directors that complies with the Davis-Stirling Act so board members know what they can and cannot do with emails.
