You've Got Mail E-Mail and Smart Board Communications

Returned quicker than a phone call and, lately, more powerful than a postal letter, e-mail has become the superman of communication for all facets of life. Today, not only are e-mails used in everyday business and for personal communication between friends and family, but e-mail has extended into the communication between physicians and patients, teachers and students, and between property managers, board members and shareholders.

When Allison Winn Scotch and her husband wanted to renovate their Upper West Side co-op, they needed to discuss several issues with their property manager. Instead of playing "phone tag" with their very busy administrator, the couple e-mailed him to hash out the non-urgent details and waited for a response.

"We communicated with the manager about what we could and couldn't do in terms of potential board approval with our renovations, problems that we had between our contractor and the building super, and more recently, problems that we're having with our downstairs neighbor who teaches voice lessons at all hours of the day," said Scotch. "The property manager responds quickly - usually within a day or so and much faster than the phone."

Think of all the benefits that e-mail has to offer: residents like Scotch can e-mail property managers at their convenience, without the concern of bothering them during working hours with non-emergency matters. Overwhelmed property managers can read concerns or questions from tenants, find answers and respond after taking care of more pressing daily matters. It's also an efficient and effective way to conduct board business with members who volunteer their time and have varying work and personal schedules.

E-Trouble

As beneficial and productive as e-mail can be, it can still have a dark side.

"E-mail is a great way for boards to communicate with professionals, managers and attorneys, but what people fail to appreciate is that an e-mail is similar to a recorded telephone conversation," says Joseph Colbert, partner at the law firm of Rosen & Livingston in Manhattan. "It's a quick means of communicating, but it is still a correspondence, a letter."

As a result, be careful before you hit the "send" button. If not handled property, emails can lead into serious litigation issues. Remember Enron? Or what about the Arthur Anderson scandal? An e-mail revealed Arthur Anderson's profligate document shredding. E-mails also exposed the wrongdoings of Merrill Lynch analysts and, in another case, brought obstruction of justice charges against Frank Quattrone, a former investment banker.

According to a study by the ePolicy Institute in Chicago (www.epolicyinstitute.com), over one in five employers (21 percent) has had employee and instant messages (IMs) subpoenaed in the course of a lawsuit or regulatory investigation. That's more than double the nine percent reported in 2001, and a seven percent increase over the 14 percent reported last year. Another 13 percent have battled lawsuits triggered by employee e-mail.

Okay, so your building isn't a big business like Enron or Arthur Anderson, and your board members are simply everyday folks who volunteer their time, so there's no problem, right? Wrong.

"It's legally okay to conduct business electronically, but there are certain types of communication that you have to be careful about sending via e-mail," says Peter Schillinger, a partner with Schillinger & Finsterwald, LLC, a law firm in White Plains. "The idea is that if you have something to say that you would regret if it became public, you may not want to send it via e-mail."

Colbert remembers one situation when a board wanted to terminate a managing agent. "Unfortunately, a board member accidentally copied the agent on the e-mail regarding his termination," says Colbert. Depending on the content of the e-mail, the managing agent could have used the communication to trigger a wrongful termination lawsuit.

Another potentially risky scenario: Let's say your board members are e-mailing discussions regarding a new applicant, Jane Smith, a 25-year-old African American single woman. Board member John e-mails his displeasure of accepting Jane into the building to his board member and friend Steve. Friendship aside, Steve feels the need to alert the remaining board members of Tom's racist comments. Regardless of how the application process turns out, if Jane sees these e-mails, she may have a case for a discrimination lawsuit against the board.

Good Policy = Fewer Problems

According to the ePolicy Institute, businesses should have a comprehensive written ePolicy regarding the use of e-mail to prevent any potential legal ramifications. Boards could benefit from such a policy and should an e-mail policy written into the bylaws.

So what can board members discuss in an e-mail? Meetings can be planned, but whether or not voting is allowed via e-mail depends on the building's bylaws. Bernard Iser, an account executive and property manager for Orsid Realty Corporation, manages seven buildings and communicates via e-mail with almost all board members on almost all board business. "We canvass the board and ask for a yes or no vote, but we don't include our reasons," says Iser. "We defer our discussion for a sit-down meeting."

"E-mail technology is very valuable, but you also can't assume that everybody is reading their mail," says Colbert. "If only five of seven board members regularly read their e-mail, that's clearly not a good way of discussing board matters."

Attorneys advise boards that they must still have in-person meetings during the year, where confidential matters can be discussed.

Toni Kamins, board president of her Jane Street condominium, has found e-mail communication between her board members to be a positive experience.

"It allows the board and management to communicate quickly and efficiently in a timely fashion without playing telephone tag," says Kamins. "It allows us to share documents and cuts down on paper and messengers. It also makes it possible for board members to discuss issues without having a meeting. We've moved from one meeting a month to one every other month as a result, and our meetings are shorter. And, e-mail allows board members who are traveling to participate without being on-site."

More to Think About

E-mail communications with all tenants still has kinks that need to be worked out, however - but that may take some time. Not all residents own a computer. "It's too cumbersome to keep a list of those who have e-mail and those who don't, so we still have to send out hard copies unless all of our tenants are online," says Iser. "Eventually, all correspondence will be done by e-mail, but there are older folks who don't care about getting it, so it's going to take time before everybody has it."

Another issue is the retention of e-mails. It's important to establish protocols on keeping or destroying emails between board members. Remember, however, that printed e-mails may not hold up in court since they can be tampered with prior to printing. Also consider computer backups of all e-communication on a regular basis.

In the meantime, Sandra Lamb, author of "How to Write It: A Complete Guide to Everything You'll Ever Write," says that professionals - including board members and property managers - should remember e-mail etiquette no matter who they are dealing with.

"Don't put something in an e-mail that you wouldn't say to the person's face," says Lamb. "Don't e-mail in anger, either. Put a "˜hot' message on hold, cool off, re-read it and then decide if it's cool enough to send."

E-mail is convenient, but board members and property managers need to implement security measures to prevent any unwanted lawsuits that would cost far more than the price of a stamp.

Lisa Iannucci is a freelance writer living in Poughkeepsie, New York. For a sidebar story on e-mail etiquette, click here.

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