Board Collaboration With Care
Programs that allow users to share notes and other work product in real time have increased in popularity in recent years. However, the pandemic and resulting business closures have made services like Microsoft Teams indispensable for some industries. Some community association boards in Washington and Oregon may experience the utility of these programs in one context, and want to translate the same connectivity to assist their work on the board. While most governing documents probably do not expressly prohibit using a shared system for notetaking and discussion, there are some potential issues your association should consider before deciding to use one of these programs.
First, what happens to these notes if an owner files a lawsuit. Typically, the documentary evidence of a board decision consists of the meeting minutes - which should be a straightforward description of what occurred - and perhaps a resolution by the board. There is a strong argument that a shared forum where all board members discuss topics and decisions would constitute a record of the association under Washington and Oregon law, and would be discoverable in a lawsuit, meaning they would be provided to the opposing side. In and of itself, turning over sparse notes is not a concern, but if board members use the programs to write down their stream of consciousness on every topic, they may say things they would not expect to become public. Moreover, deleting notes could be very problematic, and there would need to be some kind of system in place to track, maintain, and organize these records.
Second, there are privilege concerns. Every board is entitled to speak frankly with counsel, the association's manager, and each other on all issues facing the community, and those communications are protected by attorney-client privilege. However, if privileged topics are not kept strictly separate from general topics, or if a non-board member has access to the shared electronic notes, privilege can be inadvertently waived. Beyond legal privilege, there are confidentiality and privacy issues that can arise, and a board needs to take steps to protect that information.
Third, there are corporate governance issues to think about. Boards can only take action at properly noticed and called meetings where a quorum is present. Adding to electronically shared notes outside of a meeting can be a tricky, and if the board is not careful, it may open an association up to an argument that it is conducting business outside of regular or special meetings in violation of the governing documents and the law. Granted, boards are permitted to hold a working sessions, but you can see how some owners (or some courts) could interpret adding to a shared system outside a meeting and outside a noticed working session to be problematic.
If your board of directors has thought about using a shared electronic system, please do not hesitate to contact Barker Martin to discuss some of the above issues further, and best practices for protecting privileged, private, and confidential information. We are also available to assist with anything else your association needs during this difficult time.