AUGUST 2023

CASE LAW UPDATE



Court of Appeal: Open Meeting Act Does Not Prohibit E-mail Discussions by Quorum of Board

A recent court of appeal opinion interpreted the Open Meeting Act (“OMA”) portion of the Davis-Stirling Common Interest Development Act as not prohibiting e-mail discussions of Association business involving a majority or more of the Board members (LNSU #1 LLC v. Alta Del Mar Coastal Collection Community Association (2023) --- Cal.Rptr.3d ---, 2023 WL 5496747). The opinion states:

By discussing items of Association business in e-mails (e.g., whether to approve appellants’ landscaping plans and whether to fine another homeowner), the directors did nothing contrary to the purpose of the OMA, because they took no action on those items in the e-mails. Although the OMA prohibits the board from acting on items of Association business outside a board meeting (§ 4910, subd. (a)), it does not prohibit the board from discussing the items outside a meeting. Had the Legislature intended to prohibit such discussions, it knew how to do so. In the Ralph M. Brown Act (Gov. Code, § 54950 et seq.), an open meeting law that governs public agencies and the provisions of which “parallel” those of the OMA (Damon, supra, 85 Cal.App.4th at p. 475, 102 Cal.Rptr.2d 205), the Legislature provided: “A majority of the members of a legislative body shall not, outside 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, § 54952.2, subd. (b)(1)). Interpreting section 4090, subdivision (a) to include the e-mail exchanges at issue in this case, as appellants would have us do, would effectively add to the OMA a similar provision prohibiting directors from discussing items of association business except at a board meeting. We refuse to adopt an interpretation of a statute that would require insertion of language the Legislature knew how to include but did not include. (Emphasis added.)

While this ruling will certainly be welcomed by homeowner association Board members and vendors, a cautious approach is warranted. The ruling permits e-mail “discussions” but specifically references the prohibition against “taking action” on an item of Association business via e-mail except in an emergency. The potential seems high for an e-mail discussion between Board members to quickly move to a decision reached via e-mail. Reaching a decision via e-mail would run afoul of the OMA general prohibition against “taking action” on an item of Association business outside a noticed Board meeting. The better practice is still to discuss and deliberate on matters of Association business at noticed Board meetings.

Questions? Clients with questions or concerns about this requirement may reach out to a Fiore Racobs & Powers attorney.

 

For Associations who are not currently working with us but are interested in doing so, please contact Manager of Client Relations Diane Weissberg at 1-877-31FIORE or by e-mail at dweissberg@fiorelaw.com for assistance. 

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