In 2012, the Colorado legislature changed the laws governing community association records, including requirements that Board members’ e-mail addresses be retained as official records. At first, many of our clients balked at the new requirement. As many of you are aware, it’s very easy to allow electronic communications to become uncivil, and Board members didn’t want these communications going to their private or work e-mails.
To address these concerns, we recommend that our association clients create e-mail addresses for the Boards, and that the Boards pass these along to new Board members as they are elected. This ensures continuity of communications for homeowners, and it also protects Board members from the risk of having their personal or work e-mails subject to discovery in the event of litigation. Board members can also create their own personal association e-mail addresses, although this does not have the bonus side of maintaining continuity as the Board turns over. Either way, Board members should have dedicated association e-mail addresses.
An unfortunate side effect of the ease of electronic communication, other than the potential for incivility, is the desire for Boards to take action by e-mails instead of at Board meetings. While the Non-Profit Corporation Act, and may community Bylaws, permit actions without meeting, the Colorado Common Interest Ownership Act grants to unit owners the right to speak on an issue before the Board votes on that issue. Contact your attorneys to make sure that you are not inadvertently preventing interested owners from speaking on an issue before the Board, by making electronic decisions.
Another unfortunate side effect of electronic communication is that it easily becomes overwhelming. When a five member Board attempts to discuss something controversial by e-mail, someone who only checks their Association e-mail once a day (or less!) might come home to a hundred e-mails. This is not efficient or effective, and can overwhelm that Board member and discourage their involvement. Electronic communications between Board meetings can help a Board be properly educated before making a decision, but these communications should not be a venue for extensive discussion and argument.
If a Board member is overwhelmed or otherwise disinterested, and does not participate in discussions or votes (either by e-mail or in person, when appropriate), that Board member is not doing his or her job. Colorado law protects decisions made in the reasonable business judgment of Board members; it does not protect the Board’s failure to make a decision. If you are on a Board and are unable to participate fully in the decision-making process, consider whether you have enough time and interest to devote to this duty. If you are overwhelmed by e-mails, talk to your other Board members and management company to try to decrease communications outside of meetings. It is your duty to be informed and make decisions; you should not just rely on someone else who seems more interested or engaged.
A good Board member acts in the best interests of the Association by protecting its records, participating fully in accordance with the law, and actively making decisions to further the Association’s purposes. A good Board member also realizes that there is more to life than Association governance, and works with the other Board members to achieve a balance that respects the importance of down time while fulfilling Board duties.