May HOA Board Members Vote by Email?

Here is the question that triggered this email.

‘Lots of board members want to know if they can vote on matters before the board when they cannot attend a board meeting.”

The answer is – there is only one type of matter where board members can vote by email, and that is something that requires emergency action. And, all board members must agree that there is an emergency and the matter needed immediate attention, and all must agree on the action approved.

Where does this conclusion come from (in California). The legislators have weighed in – heavily handed I might add – on their views on email use. And the legislation came directly from complaints that boards across the state were doing business by meeting together, and using email, to discuss business outside a meeting, and were thus not having any debate or discussion at the meetings where owners could attend and see what was being discussed.

So here is the law in California (as excerpted from my book THE DAVIS STIRLING ACT IN PLAIN ENGLISH, complete with commentary):

4910. BOARD ACTION OUTSIDE OF MEETING PROHIBITED EXCEPT EMERGENCY MEETING  (a) The board shall not take action on any item of business outside of a board meeting.

(a) The board shall not take action on any item of business outside of a board meeting.

b) (1) Notwithstanding Section 7211 of the Corporations Code, the board shall not conduct a meeting via a series of electronic transmissions, including, but not limited to, electronic mail, except as specified in paragraph (2).

(2) Electronic transmissions 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 electronically.

Comment: Before this new law effective 1/1/2012 email had become a method of choice by many boards to discuss matters before a scheduled meeting. Many were coming to meetings with decisions already made, and the lawmakers responded with laws that prevent doing business by email, except for  an emergency meeting, which can be conducted by email so long as all board members consent to the action proposed for emergency consideration.

*****************************End of Excerpt

I know you will want to know – “not even just once, when they are going to be out of town and an important matter is discussed?”

The answer is still no.

But alas, there is a solution when a board member cannot attend a board meeting because they are out of town. The board can “dial them in” on the telephone. Teleconference meetings are allowed so long as at least one board member or designated person is available at a location where owners can attend the meeting and hear the board members discussing the business.

So don’t think the board member can weigh in by email, or that they can appoint another director to vote on their behalf by proxy. Board members need to be in on the discussion if they are going to vote on important matters before the board.


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