Watch Those E-mails and Text Messages; What You Say About That Owner Today May Come Back to Haunt You Later!

E-mail has become the communication method of choice for many board members and association management. It is a rare board member or manager that does not utilize e-mail, and while we all can agree that e-mail has improved our respective ability to communicate with one another, it does have its downsides. And now, text messaging is becoming an important communication tool; just consider what you say before sending that message.

You cannot help seeing the headlines about the many major company and public officials, sports and entertainment figures that have been brought down by their e-mails and/or text messages (and even tweets). Many company executives that are currently or recently being prosecuted for bringing down their companies and/or defrauding shareholders have to defend their e-mails. In many cases it is the e-mails themselves that got these people into trouble.

While e-mails are often thought to be merely one individual “conversing” with another individual, the difference is they are really considered written, and in many cases, permanent communications. This means that the e-mail you send today saying something nasty about a homeowner will live on in someone’s hard drive or on some server somewhere and may later surface to haunt a board member, manager and/or the communities they serve.

This is not an impossible situation, as it has already happened. This type of situation recently occurred in a case I was handling for a 50-unit condominium association. The association had been named in what we all thought was a frivolous lawsuit where a homeowner had requested a particular parking space as an accommodation for her disability. The board of directors refused to provide that homeowner with that parking space because it had already been providing her with valet parking, that parking space was the only parking space the association controlled, and other disabled individuals had also requested the use of that space.

The owner sued, and her attorneys requested copies of e-mails between the board members. Sure enough, those e-mails were produced (as this is required by law), and we discovered that some of the board members had made some not so flattering comments regarding the disabled owner. Taken out of context, those e-mails could have established that the board of directors’ motivations for failing to accommodate the homeowner were not because the association was already providing a parking accommodation, but because the board did not like this particular owner. Fortunately, that lawsuit was settled and those e-mails were never utilized at trial. But they were mentioned at mediation and did help motivate a settlement.

In addition to being a community association attorney, I have also served as a board member for my own association, which communicates regularly via e-mail regarding “agenda” items. The board discusses, via e-mail, the merits of this contractor or that contractor, CC&R violations, and the like.

And as an attorney representing hundreds of California community associations, I am also copied on many e-mails where the board members are “discussing” important hot topics, especially those that I may be involved in with them. Just because they are including the attorney in on the receipt of the e-mail does not make that e-mail an attorney-client privileged communication.

What does all of this mean? It means that board member and management e-mails could be produced during litigation, and what is said in those e-mails could jeopardize an association’s position during a lawsuit. What those e-mails say could be used to challenge the legitimacy of the board of directors’ decision and they could be utilized to show that the board of directors did not deliberate regarding a particular matter at an “open” Board meeting as required by the Civil Code.

I am not suggesting for a second that board members and managers not continue to utilize e-mails to communicate. I am recommending that we all be careful about what we say in e-mails, realizing that what we say in those “writings” can come back and be utilized in some challenge to the board of directors’ decisions or in litigation.

Follow this link for a Common Ground (published by Community Associations Institute) July-August 2008 article written by attorney Marvin J. Nodiff that addressed this very issue. Be careful out there!

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