Publisher’s note: this week’s question was answered by my law partner, litigator Keith Nichols.
Q: I came across an e-mail communication between board members that seems to indicate that the board voted on an issue based upon emotion rather than the rules and regulations of our community. I would like to share this e-mail with other residents, but I am apprehensive about doing that. Is there any special protection for this form of communication, or am I free to share?
A: Board members are supposed to discharge their duties in good faith and in the best interests of all of the owners in the community. Other than meeting minutes, which are supposed to be available by law to all members upon request, communications between board members are treated as confidential and should not be released to those outside the board.
This is especially true when an attorney is involved in the communication or decision-making process, since disclosure could result in a waiver of the attorney-client privilege. Certain topics are discussed during the closed, executive session of the board for a reason. For example, they often involve the private or financial affairs of your neighbors.
If released, e-mail or other written communication between board members is typically afforded no special protection. Even disclaimers that an e-mail is “for the eyes of the recipient only” have little practical effect. The reality is that as part of most litigation, internal communications between board members would likely have to be produced either upon the request of an attorney or an order of the court.
Associations are typically nonprofit corporations. As with any business, those in charge should understand that what they put in writing could be shown to a judge or jury. Therefore, they should be comfortable that they have reviewed the content and tone of their communication and have found it to be appropriate before they hit the send button.
Given the common technology making it easier to send and forward e-mails, board members can attempt to avoid snafus by making a habit of double-checking the content and recipient list related to any confidential e-mail regarding the board’s activities. They should also be sure to delete extraneous e-mails on the string in the event they forward communications of other board members or the association’s attorney.
In this instance, assuming that you acquired the e-mail by lawful means, you would be free to share it with others. Keep in mind, though, that the repercussions of sharing the e-mail could result in a lawsuit against the board, the associated costs of which may be ultimately paid by you and all other owners.
Originally published in the Charlotte Observer on October 26, 2013.