A HOA’s board of directors is generally prohibited from conducting a board meeting “via a series of electronic transmissions, including but not limited to, electronic mail.” (Civ. Code § 4910(b).) Email meetings may, however, be used to conduct an emergency meeting. (Civ. Code § 4910(b).)
Civil Code Section 4090(a) defines a “meeting” to include:
“[a] congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.”
Thus, where a quorum of the board (typically, a majority of the directors) discusses or deliberates upon an “item of business” via a series of emails, such communications would constitute an email meeting that is prohibited under Civil Code Section 4910(b).
“Item of Business” & Delegation
An “item of business” for the purpose of Civil Code Section 4910’s prohibition on email meetings means “any action within the authority of the Board, except those actions which the board has validly delegated to any other person or persons, managing agent, officer of the association or committee of the board comprising less than a quorum of the board.” (Civ. Code § 4155 (Emphasis Added).) Thus, a series of emails regarding an item/issue which has been delegated by the board to another person, officer or committee may not necessarily constitute a “meeting” for the purpose of Civil Code Section 4910’s prohibition on email meetings.
Notwithstanding Civil Code Section 4910’s prohibition on email meetings, a board may communicate via email in the following circumstances:
- Emergency Meetings – Email may be used as a method of conducting an emergency board meeting “if all directors, individually or collectively, consent in writing to that action, and if the written consent or consents are filed with the minutes of the board meeting. These written consents may be transmitted [via email].” (Civ. Code § 4910(b).)
- Less than a Quorum – Email communications between directors comprising less than a quorum of the board would not constitute a meeting for the purpose of Civil Code Section 4910’s prohibition on email meetings. However, Civil Code Section 4910(b) prohibits a “series of electronic transmissions”—indicating that an email exchange which at first does not involve a quorum of the board, but ultimately leads to a series of emails by and between a quorum of the board, would still be prohibited. This issue of “chain meetings” is discussed further below.
- Discussion on matters which are not “items of business” – Industry practice does not treat purely administrative/informational communications as “items of business” which must be acted upon by the board in a board meeting. Such communications could include scheduling meetings, providing resources of factual information, and/or requesting items to be placed on the agenda. The propriety of this practice is supported by the language in Civil Code Section 4930 that allows for administrative/informational actions to be taken at board meetings regardless of whether they appeared on the agenda that was provided with the notice of meeting. (See “Board Meeting Agenda Requirements.”) Additionally, to the extent that an action has been validly delegated by the board to another person, manager, officer or committee, that action no longer constitutes an “item of business” which the board is prohibited from discussing via email. (See “Delegating Duties & Authority.”)
As discussed above, a meeting is defined under Civil Code Section 4090(a) as “[a] congregation, at the same time and place, of a sufficient number of directors to establish a quorum of the board, to hear, discuss, or deliberate upon any item of business that is within the authority of the board.” (Emphasis added.) In order to circumvent the prohibition on email meetings, boards sometimes seek to conduct a “chain meeting” whereby a quorum of the board does not collectively discuss an item of business “at the same time and place,” but rather director “A” emails director “B,” who then emails director “C” and so on. A similar approach would be to have director “A” remain at the center of the communications and email each of the other directors individually, rather than as a group. These types of “chain meetings” are also referred to as “serial meetings,” “wheel hub meetings,” and “rolling quorums.”
Chain meetings are not explicitly addressed in the Open Meeting Act. However, these communications may still violate the Open Meeting Act and the prohibition on conducting a meeting “via a series” of emails set forth in Civil Code Section 4910(b). Moreover, communications of this type are prohibited under the Brown Act:
“A majority of the members of a legislative body shall not, outside of a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” (Gov. Code § 54942.2(b)(1) (Emphasis added).)
Though the Brown Act regulates meetings of public legislative bodies and not private HOAs, the Brown Act was used as a model for the Open Meeting Act. It is therefore possible that Courts will look to the Brown Act in order to interpret seemingly ambiguous provisions of the Open Meeting Act.