Use of “Reply All” in Light of the Palm v. 2800 Lake Shore Drive Condominium Association Decision
While much consternation has taken place over the past few months regarding the recent Illinois Appellate Court for the First District, Fifth Division case Palm v. 2800 Lake Shore Drive Condominium Association, et. al. (2014 IL App (1st) 111290), one question we have received from multiple board of directors is whether or not the Palm decision means that board members may no longer hit “reply all” when communicating via e-mail with each other. While the Palm decision certainly has some potentially significant implications for many associations, the Palm decision should not prevent board members from communicating via e-mail and copying all board members on e-mails between a board member and the association’s property manager, attorney, accountant, etc. This article will address the use of “reply all” in relation to Palm. For our complete summary of some of the major issues and implications of the Palm decision, please see the link on our webpage, www.keaycostello.com.
In Palm, the court reviewed the definition of what constitutes a board “meeting” in the Illinois Condominium Property Act (765 ILCS 605/1 et. seq., the “Condo Act”) and ruled that meetings of the board are required to be open to owners, except in three (3) limited circumstances set forth in the Condo Act (765 ILCS 605/18(a)(9)) and that owners need to be provided notice prior to board meetings. Specifically, the Condo Act (765 ILCS 605/2(w)) defines a “meeting” of the board of a condominium association as “any gathering of a quorum of the members of the Board of Managers or Board of the Master Association held for the purpose of conducting board business.”
While not at issue in Palm, the Illinois Common Interest Community Association Act (765 ILCS 160/1-5, “CICAA”) contains the same definition for board meetings as the Condo Act in addition to a similar open meeting requirement (Section 1-40(b)(5)). Additionally, for associations not subject to either the Condo Act or the CICAA, the Illinois General Not for Profit Corporation Act (805 ILCS 105/108.21, the “NFP Act”) contains an open meeting requirement as well as a definition for board meetings which defines a “meeting” as “any gathering of a quorum of the members of the board of directors held for the purpose of discussing business of the homeowners association”.
The court in Palm addressed some board communications that take place via e-mail. Specifically, the defendant board members, according to the court, had engaged in “voting” via e-mail on at least one occasion. The Palm court held that this practice violated the requirement within the Condo Act (which also exists in the CICAA) that all votes of the Board must take place at an open meeting. Thus, Palm made it clear that, in the court’s opinion, no “voting” may take place by board members outside of an open board meeting.
However, for the purpose of determining whether the use of “reply all” in a discussion thread within a series of e-mails between board members and/or between board members and a property manager, attorney, accountant, etc. is appropriate, the court in Palm did not make a direct ruling on this issue since this was not an issue in the Palm case. Therefore, in addressing this matter, one key phrase that is used in the definition of a board “meeting” in the Condo Act, CICAA and NFP Act is “gathering of a quorum” of the board members.
Merriam-Webster’s online dictionary defines a “gathering” as “an occasion when people come together as a group” and also as an “assembly; meeting”. (http://www.merriam-webster.com/dictionary/gathering?show=0&t=1406150377). In other words, the definition of “gathering” contemplates board members physically getting together. This does not take place where one board member sends an e-mail and copies the other board members on this e-mail. Even if the definition of “gathering” is stretched to include some type of online get together, like a “google hangout” or online “chat” function, where board members could communicate electronically in real time, this would still not cover a situation where a board member sends an e-mail and copies the other board members on the e-mail.
A board member sending an e-mail and copying the other board members, or hitting “reply all” in response to an e-mail from a property manager, attorney, accountant, etc., is no different in practice than a board member who mails a physical letter and makes copies of that letter and mails the copies to each of the other board members. In that scenario, no “gathering” has occurred. The fact that an e-mail can arrive to the other board members within a few seconds, rather than within a few days like a mailed letter would, does not transform this means of communicating into a “gathering”. Without a “gathering”, no “meeting” of the board has occurred according to the definitions outlined above from the Condo Act, CICAA and NFP Act.
Finally, while it is customary, and often necessary for practical purposes, for one officer to communicate with property managers, attorneys, accountants, etc. on behalf of the entire board in most cases, copying all board members on correspondence can help the other board members stay informed on matters concerning the association. Failure to use “reply all” or copy all board members on correspondence with a property manager, attorney, accountant, etc. could create a situation where board members are left out of the information loop on association matters.
In summary, the court in Palm addressed board members voting via e-mail. But, there is no language in the Palm opinion specifically prohibiting board members from corresponding with each other via e-mail, or copying each other on e-mails with third-parties such as property managers, attorneys, accountants, etc.