Everybody’s Talking

You are serving on your board and you want to tell your manager about the pigeons nesting – and defecating – on your co-op’s ground-floor storefront. You send him an e-mail describing the problem. An hour later, you remember that you didn’t query him about the financial review of the budget that the board had asked him to do – “and by the way,” you add in what you see as a jesting tone, “don’t forget, we want to add an agenda item that eliminates – preferably lethally – Mrs. Smith’s obnoxious-looking dog!” You copy this e-mail to all the board members, and many of them reply within the hour, some offering comments on the budget, others agreeing about Mrs. Smith’s canine.

All of this is, naturally, copied to the manager – to keep him informed. All told, at the end of the day, the correspondence – some, just brief replies, others, long, rambling discourses – totals some 30 pieces of e-mail from the seven members of the board. The last e-mail asks the manager why he hasn’t responded yet to one of the work requests that a board member put forward about two hours before.

Sound familiar? This hypothetical board talk is typical of many co-ops and condos in the Big Apple, with writers exulting in the freedom of e-mailing but not recognizing the dangers of what they are saying (there were at least three errors made by this board, which could come back to hurt the co-op later).

In the last decade, nothing has changed the way co-op and condo boards do business as much as e-mail. From crisis management to financial discussions, electronic communications have simplified and speeded up how boards do business. “We’re getting e-mails from everybody,” notes Lynn Whiting, the director of management at The Argo Corporation. “Even the supers are using e-mails more as a means of communication.” Adds Ruth Shoenthal, who recently stepped down as board president at a 145-unit Manhattan cooperative: “We use e-mail constantly. Couldn’t live without it. Couldn’t do our work without it.”

One could argue that e-mail has not only revolutionized the way we live now, but it has also affected the standing of everyone on the board. At a monthly meeting, for instance, the more forceful personalities may dominate discussions, and those less comfortable with public speaking may fade into the background. But when e-mailing, all things are equal and everyone can speak up – as elegantly or inelegantly as they want – in what is the ultimate form of democracy. And that means boards should ask themselves if they are using electronic correspondence correctly. Are they following the proper procedures to get the most out of e-mail? “It’s a wonderful tool if you keep it under control,” says Michael Wolfe, president of Midboro Management. But, he adds, it can be a nightmare if misused.

Circumspect Communication

To get on the right track, the board should consult with its attorney and manager about establishing written protocols for e-mail use that are tailored to the board’s needs. Protocols are like house rules: they differ from building to building and are intended to offer guidance to the uninitiated about what you should or should not be doing with your e-mail. Possible protocols include:

Be circumspect in your correspondence. This is the most basic – and necessary – protocol. It translates as: “Don’t offer opinions on controversial topics via electronic mail.” Unlike talk, which lasts only in the memory, e-mails – even those that have supposedly been trashed – can linger on like a bad song that comes back to haunt you. “What I tell any new board member is when we use e-mail, we need to remember not to write anything that could be incriminating because e-mails can be used as evidence,” observes George Karpodinis, president of a 234-unit cooperative in the Fort Washington section of Manhattan.

“The problem that we see is that board members, management, accountants, and even lawyers use e-mail for casual conversation, and that once they send it, they think it’s gone forever into the abyss and that it’s not a reproducible record,” notes Joseph Colbert, a partner at Kagan Lubic Lepper Lewis Gold & Colbert. “That’s a mistake, because if somebody is willing to pay enough money, it is reproducible. You can find the stuff within the bowels of the computer, in the hard drive.”

Indeed, e-mails that discuss employment decisions, criticize others in the building, or talk about admissions questions can be fodder for lawsuits – and/or can be used in highly politicized environments. For instance, someone could take the budget and distribute it among the shareholders if he wants to make a point that the board is misspending money.

Nuance – or lack of it – is another caveat in using e-mails. It is easier to misconstrue a statement when you are not meeting a person face-to-face and hearing how something is being said. “You cannot detect sarcasm, anger, or happiness in an e-mail,” notes Steve Greenbaum, director of management at Mark Greenberg Real Estate. “I’m from the old school: for some topics, face-to-face, voice-to-voice is important.”

“E-mail has many benefits, but sometimes people have an itchy ‘send’ finger and end up saying things that they would not say in conversation or even in an old-fashioned written letter,” adds Sam McPherson, vice president and treasurer at a five-unit Brooklyn co-op. “Maybe there should be a pop-up message that scans your e-mail and asks: ‘Do you really want to say that?’”

Admissions matters will not be discussed in detail. By the same token, questions about potential purchasers can be misconstrued or taken out of context. Karpodinis, who sits on his building’s interview committee, says: “We use e-mail for non-sensitive things. If everybody feels that the [potential buyer’s] financial package is good, we will e-mail to one another, ‘Okay, when can we have the interview?’ And we’ll set up the interview among ourselves, via e-mail. If there’s a problem with someone’s financials, I don’t see any problem in putting it out among ourselves in an e-mail that we have some questions that we need to discuss. Or, that we’re going to get back to the property manager and ask her to get more information or verification of income, or whatever it might be. If it’s a more sensitive issue than that, we send an e-mail that says, ‘Let’s talk on the phone.’”

Polling of the board is permitted, but it must be followed up by an actual vote at the next board meeting. Making quick decisions on non-controversial topics via e-mail is fine; legally, however, you have to stage a vote at an actual meeting. “You can [legally] poll board members by e-mail for a vote,” Colbert says. “If everybody votes in favor of it then it could be used as unanimous written consent.” Nonetheless, if boards electronically poll votes between meetings, they still need to ratify and record the decision at the next official gathering. Observes Midboro’s Wolfe: “What boards tend to do is make a mistake. They do this polling, which they consider to be voting, and they don’t put it in the minutes of their next meeting. It’s very important to do that. Technically, it’s not a vote, it’s only a poll.”

Board meetings cannot be held by e-mail. Although the law permits teleconferenced board gatherings, it prohibits ones by electronic mail. The reason is simple: nuance can be missed when you cannot actually hear the tone or inflections of the voice.

Copy Cats

E-mails regarding board business must be copied to all board members. This means discussions between board meetings can become simpler. Paul Attinello, chief financial officer at Kaled Management, found that e-mail use speeded up the process of preparing the budget for a 105-unit Queens building his firm represents.

“We went over every line item detail in the budget, and I had e-mailed a budget format with worksheets attached to it, explaining how we got our numbers. Then, rather than put in a maintenance increase, we went the route of a surcharge so we could monitor the fluctuating costs – which were the heating costs – that were throwing the budget out of line. By going back and forth [with the board through e-mails], taking different surcharge approaches, and then also looking at the tax abatement and assessing back to that, the board came up with the [solution that was the] least onerous on the shareholders.”

Attinello recalls at least eight or nine e-mail exchanges with the board president (all copied to the rest of the board), clarifying points and passing on information. In the days before e-mail, he notes, “we all would have had to have [physically] gone there [to the co-op] and go over it again and then gone back [to the co-op] after I made my changes back in the office. E-mail facilitated the process.”

Such a process also keeps board members well-informed – not a bad thing when dealing with curious and/or angry owners. Notes Karpodinis: “Using e-mail makes it very easy for everyone to be kept in the loop between meetings. For example, we built a new access ramp through our courtyard, which is ADA [Americans with Disabilities Act]-compliant, and we’ve been waiting for handrails. People in the building are asking, ‘Where are the handrails?’ Well, they’re being fabricated, and I just found out that they’re going to be here tomorrow to install them. Between board meetings, I want the board members to know when they’re scheduled to be installed, so I sent out an e-mail. That way, if any shareholder stops them and asks them, they know what’s going on.”

E-mails shall be terse and to the point. You can write too much, getting carried away by the “power of the pen” and obscuring what you’re actually writing about. Observes Argo’s Whiting: “Sometimes, there’s so much verbiage and editorial in the e-mail that what the e-mail is about gets lost.” She cites an experience she had with one of her managers: “He had sent a tremendously long e-mail [to me] and then in the third paragraph of the last sentence he had asked for something and it got lost in just way too much verbiage.” That happens with boards as well. “We’ve told board members and they’ve been somewhat receptive that it’s too much,” she adds.

The manager shall be copied on everything. Since it is easier to communicate with your professionals, some boards like to keep them up to speed on a daily basis, without actually talking to them every day. “We don’t have the downtime involved in leaving messages for people,” notes Whiting. “It has improved communication for the residents. We’re more accessible to them because they don’t have to call [only] during business hours. Others may disagree, but I believe it has reduced the number of phone calls because people will elect to send you an e-mail rather than place a phone call.”

Only those designated to do so will e-mail the building’s professionals. Some managers – Whiting included – feel that boards can overuse e-mails. A manager or lawyer becomes less effective when he or she is buried in e-mails. Whiting says that many boards copy her on every single item they discuss, no matter its relevance. “I’ll come in to the office and there will be 40 e-mails from one building,” she notes. “It can be overwhelming. We tell them, ‘You’re bombarding us with messages. There’s just so many e-mails that you’re sending that the message is getting lost in the sheer volume.’” Think about it: if you have seven board members and they’re all e-mailing back and forth and copying each piece to the manager, one tiny conversation can turn into a long, long exchange.

Board members will pass along any board-related information from shareholders. Be careful that you respond quickly and/or note which e-mails arrive. There can be insurance issues. You may get an e-mail that affects your insurance coverage by activating your “notice” provision. That rule conditions coverage on the insurance company being provided with “reasonable” notice. If there is written evidence that a board member was notified of a particular condition or circumstance and no one alerted the insurance carrier, that could be used to refuse coverage.

Mel Vader, a long-time board member at a 78-unit Brooklyn co-op, reports that e-mails are used for many different situations at his property, including keeping the other board members and professionals abreast of developing situations. “We get information about complaints: ‘The person in 1D is still complaining about the noise from the pump in the basement for the oil,’ and we pass that on to the managing agent.”

Financial documents submitted by the managing agent are only for the eyes of the board members and will be password-protected. Boards can – and should – discuss budgets and other financial matters via e-mail, but they should also be certain that protections are in place. For instance, if you want to send out a purchase application via e-mail, you can scan it, create a Print Document File (PDF), and then password-protect it.

“You don’t want to send [a prospective buyer’s] financials out to the wrong recipient, and you only want the intended recipient to be able to open it,” explains Wolfe who uses the PC-and Mac-friendly Adobe Acrobat program to encrypt purchase applications, as well as his boards’ financials. “You give a password to a board to open the PDF. Then, after they read it, they can just delete it, rather than worrying about how to shred these three-inch thick purchase applications. You can do that with any document.”

The board will review and approve the newsletter in a timely manner. Co-op president Karpodinis writes the newsletter for his building and sends a rough draft to all of his colleagues on the board so they can review it, and add their input to it, which he says is “very helpful.”

The managing agent will respond to e-mail in a reasonable amount of time. Timely, of course, is in the eye of the beholder, but remember that simply because e-mail is fast, you shouldn’t unjustifiably increase your expectations. “Just because an e-mail is sent almost instantaneously doesn’t mean that the recipient has the time to respond to it instantaneously,” says Wolfe. “There should be some type of buffer or some type of reasonable time depending on what it is.”

“I find e-mail makes it easier, but it also makes it much more demanding,” adds Kaled’s Attinello. “When you’re getting e-mails you’re asked to respond immediately. If you don’t respond to an e-mail within a certain amount of time, people are then calling and saying, ‘How come you didn’t respond to the e-mail?’ In the old days, you might talk on the phone, then be sent a Fed Ex. The Fed Ex will take a day or so to get to you; you have time to think about it again, and then you look at it, talk to them again, and turn it around by the end of the day. But now, people are looking for immediate answers.”

Board members will not communicate board business to outsiders without permission. The concern is that board members send e-mails outside the “cone of propriety,” in Colbert’s words. He adds: “When a lawyer communicates with his or her client, the board members, or managing agent, and it is for the purpose of giving legal advice, that is privileged. “So, what happens when a board member gets a communication from me and then sends it off to someone who is not within that privilege? Does that waive the privilege? Arguably, it does.”

No Substitute for the Real Thing

Even though electronic mail is an important tool, in the end, many argue it is not a complete replacement for face-to-face contact. “I personally am wary because I’m a computer Neanderthal,” admits the president of a mid-sized Long Island co-op, with a laugh. “So, I’m never too sure. I’ve been using a computer now for maybe 15 years and I still don’t know what the hell I’m doing. Whenever a new feature comes out, I’m the last to pick it up.” Admits Wolfe: “You lose the personal touch, and what happens is that the tone is lost, and we just blast out a response and you tend to lose the true meaning of what somebody is trying to convey.”

Having protocols can take some of the danger and sense of the unknown out of he process and reassure wary owners. “There was one board member when I first got on the board who said he just didn’t like e-mail because of the [lack of] nuances,” says Karpodinis. “He said he just felt that it was hard to really understand someone’s true meaning. And he was a stickler about that. He said, ‘I’d just rather talk face-to-face.’ So, when I became president, I told him I was very sorry but we do engage in some business over e-mail, and if he wanted to be part of the board, he would have to get e-mail. He grumbled a bit, but he got e-mail. And, after he started using it, he realized that it was okay. Then I told him, ‘Feel free anytime you feel that something is getting lost in the translation to say, “I would rather discuss this in person,” and we’ll honor that request. But at least give e-mail a chance.’”