So You Want to Use Your New iPad for Association Business? Implications of Technology for Community Associations
By: Steven F. Dunn, Esq.
Takeaway: The use of technology by community associations is a great way to efficiently manage association business and records; however, there are recommended practices that should be followed in order to minimize liability exposure.
From smart phones, tablets, smart watches, better and smaller computers, the Cloud, to social media, new technology is increasingly present in our homes, our workplaces, and, also, in the news and courtrooms. Associations, their Boards of Directors or executive organs, and their managers should use available technology to make it easier to conduct community association business. Technology makes information more accessible, and helps Boards and association members communicate with each other. While technology does make managing community association affairs easier, it also raises some issues and potential problems.
Associations should know the risks associated with using technology and establish policies on how to use technology in order to maximize efficiency and minimize problems that could be caused by unchecked use of technology. To do this, associations should examine the goals and risks associated with using technology in connection with association business. Associations should then craft rules to ensure responsible integration of technology into association affairs.
Board member communications and Association communications. For Board members, technology is not a substitute for meeting and discussing association business. Debating the merits of a certain decision or how to handle different issues is best done in meetings themselves and should not be discussed online. Board members limit liability exposure by using email only for important association business. Email is best used for scheduling meetings and proposing a topic to be discussed at meetings, rather than as a forum to actually discuss those topics. The law in almost every jurisdiction requires that all association meetings and meetings of the executive organ be open to all association members. Boards cannot use “informal gatherings” to get around these open meeting requirements, including by way of electronic communications. Board members should discuss the merits of a potential decision or debate topics in meetings themselves. If there is a lawsuit, an association may have to produce any communication in writing between Board members to the opposing side, including emails or other electronic communications.
Board members should also avoid any casual or off-topic conversation in electronic communications relating to association business. Casual emails between Board members may also be subject to discovery if there is a lawsuit. Even if not all Board members are included on the email, Board members should treat their email communications with other Board members as if those emails are public information. The content of these emails could be construed to be a violation of the open meeting requirements or lead to other potential legal problems.
Board members should also avoid emailing or communicating with each other electronically during meetings. Courts have found that electronic communications that occur simultaneously with a live meeting are part of that meeting and subject to open meeting requirements. Therefore, boards may violate open meeting requirements by communicating electronically during meeting among themselves and not later disclosing those communications. If the communication cannot wait and cannot be said out loud in the meeting, the association should have a procedure in place to add the communication to meeting minutes.
As we all are aware, association members are happier when they feel that their boards and managers are being transparent with them. Heavily relying on technology such that less is discussed and less information is provided in meetings hurts transparency and could lead to membership discontent. This practical consideration underscores the need to conduct association business through meetings themselves, and not primarily online.
Like any person or company, associations should also be concerned about keeping their records and information secure. Security concerns arise primarily from who has access to what information. Most associations will not provide their own computers or electronic devices to board members to use during their terms. Instead, board members will use their own personal devices as they engage in association business. We recommend the following rules on use of personal devices:
- Board members must use their own personal devices; if they share that device with family members, association records must be stored on that Board member’s password protected account.
- Board members should avoid using employer-distributed devices for association business, as users of such a device usually do not have a right to privacy of information stored on that device.
- Board members should be required to set up a separate email address to be used solely for association business.
- Board members must agree to delete association records from their personal devices when their terms end.
Best Practices. The two most important things for associations to remember when it comes to technology are that technology is not a substitute for association meetings, and association records must be kept secure. Laws and regulations for technology are always evolving, so associations should contact legal counsel to discuss potential issues and for advice on navigating this changing legal landscape.