Our clients often ask us if it is permissible for boards to vote on association business via e-mail. We have even heard of association boards that do not meet in person at all, but conduct all business via e-mail. Although doing business this way may seem harmless, it may actually be a breach of a director’s duty of care to vote on association business via e-mail.
The Washington Nonprofit Corporation Act allows association members to vote by electronic transmission (RCW 24.03.085) if voting in that manner is authorized by the association’s bylaws. So if your association allows owners to vote via e-mail, so long as that is authorized by the bylaws, those votes are valid.
Board meetings, however, must be conducted in real time. RCW 24.03.120 states: “Except as may be otherwise restricted by the articles of incorporation or bylaws, members of the board of directors … may participate in a meeting … by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting.”
The law requires board meetings to be held in real time (whether via teleconference or in person) because real-time meetings provide the board with an opportunity for healthy discussion and debate of the issues at hand. While e-mail is a forum that allows multiple board members to weigh in with their opinion on a matter, it does not allow the members of the board to participate in the type of back-and-forth that a true discussion requires.
There is one exception to this general rule: directors may take action without a meeting so long as there is a unanimous consent in the form of a record, such as a unanimous email vote. (RCW 24.03.465) Board decisions that are made unanimously via e-mail should be ratified at the next Board meeting so that the unanimity of the decision is reflected in the minutes. E-mail votes should be limited to issues that have already been discussed at a board meeting or that are time-sensitive and require immediate action by the board.
So, here’s your bottom line: don’t vote by e-mail. If you do, do so only when you must, and only if the decision of the board is truly unanimous. All e-mail decisions should be ratified at the very next real-time board meeting.
If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!
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My condo association has been operating illegally for four years now – now we think they have been voted in properly – an attorney has said that all decisions must be revisited including forclosures….are owners liable if someone sues us? Since they were not legally on board, does the condo insurance still cover them is they are taken to court?
Cynthia,
I can’t answer your question without more information. I can tell you that if your association was not incorporated, all owners may be personally liable for actions taken by the “association” during that time period.
Feel free to call our office if you’d like to schedule a free in-office consultation. I am glad to hear that your association is working with an attorney – is he or she experienced in community association law? That’s the single biggest factor we emphasize when talking with associations about choosing an attorney.
Best wishes,
Valerie
Valerie Farris Oman recently posted..FHA Recertification Deadlines
I live in a 70 unit condo here in Seattle. I have been a board member (on and off) for the 12 years I have lived here. I am now on the board. However, because of what I have seen and heard regarding board activities the past several years, last year and this year, on the board, I have attempted to stop board members from voting by email. I was ignored. The president said there were no laws against it. I attended one of your seminars a few years ago and returned to your website to again bring this forward. One example of this recently was a board member brought up a non-budgeted item via email….of the six board members, only three responded…and then came the email, “we voted yes, we shall proceed.”
Not only has the board voted by email, they have never put it in the minutes of the next meeting so concerned homeowners have told me that they have no idea of what is going on. I gave a copy of your blog notes on voting by email and the president said “he is just trying to get our business.” At the last meeting, the voted to allow voting for expenditures up to a certain amount. I did not vote for this. Should I just give up? Thanks, Alis
Thank you for an excellent article.
If there a way to know which RCWs apply to our condos? In this case, does RCW 24.03.465 apply to us?
We were founded before July 1, 1990, under RCW 64.32 HORIZONTAL PROPERTY REGIMES ACT (CONDOMINIUMS).
Thank you,
Peter
Hi Alis,
Sorry for my delayed response to your question – I’m only now seeing a bunch of legitimate comments were marked as “spam”!
I don’t think you should give up. The advice we give our clients and the materials we present at educational events is based directly on Washington statutes and cases. We do a lot of free education stuff, including seminars and articles for industry journals, because we feel strongly about getting good information into the hands of homeowners, boards, and managers.
Feel free to call if you have further questions.
Hello Peter,
The Non Profit Corporations Act (that you referenced) does apply to condominiums in Washington State. We tell our clients that there are two valid means of making official board decision:
1. At a real time board meeting, with quorum, after discussion and then a vote.
2. Via a unanimous writing (e-mail qualifies, in our opinion).
Hope this helps!
Our HOA board has blatantly disregarded requests, demands and other comments from members about wrongful behavior. For instance, they failed to provide copies of HOA insurance policies for months and when policies were provided they were obsolete. It took fourteen months to get the documentation, only after input from the State Insurance Commissioner’s office.
Email board meetings are held with no notification to members.
The board members are a clan and stick together, despite member concerns. They hold the view that one cannot sue unless there are financial damages. They spend recklessly and they truly do not have a definitive budget although members have voted for the “numbers on a piece of paper” that are represented as a budget. We are a small HOA with few active members, which really causes us who prefer appropriate behavior and to have to tolerate poor association representation.
So far, getting an attorney to even talk with us or to write a letter advising the HOA of issues is difficult (not enough money to justify the effort, I presume). The HOA’s attorney is either incompetent (I doubt that) or not being given complete information and, hence, supports what the board tells him. He insists that any complaint to his office be through an attorney and that he represents the board, not the HOA overall.
Doug, I’m sorry your community is struggling! The HOA attorney is correct, at least partly. He represents the HOA as an entity, and acts at the direction of the Board of Directors. He does not represent any individual homeowner, and unless authorized by the Board, is not authorized or able to deal with/respond to individual homeowner complaints directly. In any case, because he represents the HOA and not individual members, his job is the act at the direction of his client (as determined by the board).
Have you contacted attorneys who are members of the Community Associations Institute in your state? That would be a good place to start in terms of finding a referral. However, it is an economic reality that attorneys don’t work for free, so any homeowners who are upset over the handling of your HOA will have to be willing to “put their money where their mouth is,” so to speak, and pay an attorney to help you.
Other ideas include volunteering to run for election to the board the next time there is an election. Often owners who start out feeling disenfranchised by the current board can become some of the most engaged, proactive future board members.
I hope all the best for you and your community as you tackle these issues.
I am new to being a board member. Is there someplace a printed manual of updated “Washington State HOA Regulations” I could purchase?
Not that I am aware of, Roberta. We do print a new book each year that is a “handbook” of frequently asked questions for community associations. If you go to condolaw.net and click on “resources,” you’ll find our 2019 book there. Good luck!