Generally Prohibited
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).)

“Meeting” Defined
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.”

Email Exchanges are not “Gatherings” of the Board
Email exchanges between board members do not constitute “gatherings” of the board:

“By sending e-mails to one another through cyberspace, often hours or days apart and from different homes and offices, the Association’s directors did not simultaneously gather in one location to transact board business, and therefore they did not conduct a “board meeting” within the meaning of [the Open Meeting Act].” (LNSU #1, LLC v. Alta Del Mar Coastal Community Assn (2023).)

“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.

When Emailing is Permitted
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.”)

Email Discussions Outside of Board Meetings are Permitted
The Open Meeting Act’s prohibition on taking action outside of a board meeting does not prohibit the Board from discussing items of business via email outside of a board meeting:

“By discussing items of Association business in e-mails… the directors did nothing contrary to the purpose of the [Open Meeting Act], because they took no action on those items in the e-mails. Although the [Open Meeting Act] prohibits the board from acting on items of Association business outside a board meeting…it does not prohibit the board from discussing the items outside a meeting.” (LNSU #1, LLC v. Alta Del Mar Coastal Community Assn (2023).)

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