Condo Q&A: Do emails count as a board meeting?

Question:Is it considered a meeting of the board of directors if the president or another member of the board emails the other members of the board seeking a discussion about an issue to be brought before the board at an established board meeting occurring at a later date?

— J.J.

Poliakoffs: The issue you’ve raised is a very common one, and frankly we’ve heard different attorneys give different answers as to whether email discussions among directors in between board meetings are prohibited (though, frankly, we don’t think the answer is much in question). The issue also indirectly raises some common misconceptions about condominiums and open meeting laws.

Many people seem to believe that condominiums in Florida need to abide by Florida’s Government-in-the-Sunshine Law. They don’t. The so-called “Sunshine Laws” apply to government organizations, and condominiums are private organizations (though they do have many pseudo-governmental features). Instead, the Florida Condominium Act, Section 718, contains provisions that are similar to some of the open meeting requirements of the Sunshine Laws. For example, meetings must be open to residents (with limited exceptions), must be noticed at least 48 hours in advance (if not longer) and a quorum of board members (usually a majority plus one) are prohibited from meeting and discussing association issues in private.

So generally, any gathering of a majority of the board to discuss any matter that may reasonably come before the board is deemed to be a board meeting and cannot be held without notice, posting of an agenda and the opportunity for the unit owners to be present and to speak on the agenda items. It is however permissible for less than a quorum of the board to meet and discuss board business. To that extent, meetings of community association boards differ from government organizations, for whom there can be no gathering of two or more elected officials or members of a committee to discuss matters that may come before the board or committee. As far as emails go, we believe that, since the intent of the law is to ensure that owners may be heard on any agenda issue, and since statutes are strictly construed, that a quorum of the board may not conduct business via electronic means, because doing so deprives the members the opportunity to participate in the meeting and constitutes a discussion of association business among more than a quorum of board members.