E-Mail; Pitfalls and Precautions

Date: April 4, 2013

Takeaway: Boards of Directors will find it useful to set up and maintain an email service for the Board members to conduct their business, but should make an effort to educate users to limit their communications to relevant business topics to avoid violating any open meeting requirements.

Discussion: Email has become one of the most preferred methods of communication. It is fast, easy and can be sent from anywhere. However, choosing to communicate by email can create a host of problems for Board members, especially in the context of litigation and open meeting requirements.

Litigation: While it is never pleasant to deal with, litigation is often inevitable at some point for associations and their Board members. During litigation, any communications related to the subject matter of the suit can become relevant to the case, including emails sent by and between Board members. This can be problematic for Board members who use their work or personal email accounts to conduct Board business.

If a work email address is used, the employer may receive a subpoena requesting the production of the Board member’s email communications. Accordingly, the Board member may find themselves in violation of a company policy if their employer has a policy prohibiting the use of a work email address for personal matters. This is especially relevant when an employer is concerned about exposing confidential information to outsiders. Furthermore, a subpoena of this nature would require the employer to expend resources examining the employee’s email account to determine what is and is not necessary to produce.

If Board members use their personal email, they could face a similar dilemma. Emails about totally personal matters, such as friends, bills, financial responsibilities, and stories about children and spouses, will have to be produced unless all of the emails are appropriately categorized to determine which ones are relevant to the subject matter of the litigation.  This can often result in a great deal of embarrassment to all those involved.

Open Meeting Requirements: When communicating by email, Board members must also be wary of violating open meeting requirements. In Virginia and Maryland, except when in an executive or closed session, Boards are required to conduct business in a forum open to all members of the association. This includes discussing the matters at hand, as well as voting on them. Accordingly, it can be considered a violation of the open meeting requirements if Board members discuss such matters via email and they may find themselves embroiled in unwanted legal action.

The District of Columbia does not have the same statutory requirements for open meetings as Virginia and Maryland, but the association’s governing documents could create a similar burden. As such, Board members of associations located in D.C. should carefully read their governing documents to determine whether they have open meeting requirements. Regardless, it is still recommended to limit what is discussed via email.

Solution: There are several things a Board can do to avoid the pitfalls discussed above. One of the most simple and effective solutions is to set up and maintain an email service for all Board members. This can be done for free over popular email service providers, such as Gmail or Hotmail. Additionally, the Board can choose to set up its own account or domain at a low cost. This will help eliminate problems surrounding potential litigation, as well as any subsequent personal or work-related issues.

Unfortunately, there is no simple technological solution, like the creation of a new email address, to prohibit Board members from communicating via email about matters that must legally be discussed at open meetings. Accordingly, Board members should attempt to avoid using email to discuss all Board-related matters as much as possible. While email is convenient, there is nothing that can be accomplished over email that cannot be accomplished in a face to face meeting. Realistically, it is impossible to completely restrict Board members from discussing association matters via email, but at the end of the day, remind Board members that the less that is discussed over email, the better.