By Gail R. Gudder, Moeller Graf
In the technologically-driven culture in which we now live, the question arises as to what is required of volunteer leaders as far as staying educated about all the technology options available? The flip side of that question, of course, is the question of security and privacy that can arise from taking advantage of the many technological resources. These questions have become even more pertinent in the past year and a half as the pandemic pushed meetings online and forced managers to go remote. This article will briefly examine the obligations of HOAs to provide technological education for its Board of Directors and Owners.
Board of Directors
The Colorado Common Interest Ownership Act (“CCIOA) C.R.S. §38-33.3-209.6 provides a means of financing Board education using common assessments. This provision governs the content of such education but does not make such education mandatory. In order to get reimbursement using common assessments, the CCIOA requires that the educational meetings and seminars be related to responsible governance of the Association, be specific to Colorado and make reference to the CCIOA.
Looking at §303(2), the declarant appointed Board members are required to exercise the care required of fiduciaries. The Board members that are not declarant appointed are not held to this same high standard of care and (for “full CCIOA” communities) will not be liable for acts or omissions made within the scope of their Board duties unless the acts or omissions are wanton or willful. Added to this is the Colorado Revised Nonprofit Corporation Act (“Nonprofit Corporation Act”), C.R.S. §7-128-401(1), which requires that volunteer leaders discharge their duties in good faith with the care of an ordinarily prudent person and in a manner believed to be in the best interest of the nonprofit corporation.
So, what does all this mean when considering technology education in general and in a post-pandemic world? Likely, it is no longer acceptable for Board members to remain resistant to online meeting tools such as Zoom, Google Meet, or Microsoft Teams. We have found that virtual meeting platforms have made Board and owner meetings much more accessible during the pandemic, to the point where we question whether it is prudent to disregard the ability of a group to hold virtual or hybrid meetings even when it’s not necessary. Luckily, these applications are extremely user friendly and relatively secure. The pandemic has caused Board members to become more adaptable and tech savvy.
Other technology that could be valuable for Board members in their responsible governance of the Association:
- Website building applications are essential for creating and maintaining an association website where governing documents, announcements and notices can be posted.
- Email programs are also essential for 21st Century communication with Owners and Managers. We generally recommend a cloud-based email program for volunteer leaders’ emails, as opposed to comingling association emails with the volunteer leaders’ private, business, or other email accounts.
- Social Media sites can be used for connecting with Owners and disseminating information. It is important to recognize that platforms such as Nextdoor have been routinely accepted by owners as a source of credible association information, which may or may not be the case in any given circumstance. We typically don’t encourage volunteer leaders to monitor social media platforms to ensure accurate association information due to the time commitment involved and general impossibility of doing this effectively-- but we do recommend that it is made abundantly clear to owners that they are welcome at open board meetings and would be well served to fact check issues with the board or management team before posting on social media.
- Microsoft Word and Adobe Acrobat are important for creating notices and other documents.
- There are countless other products that can be used in the responsible governance of an Association.
When choosing what products to use, Boards must be cognizant of security and privacy requirements as well as the cost to adopt and the cost to learn. Clearly, all members of the Board do not need to be educated in all the products that are adopted, but the primary user should have a good working knowledge of the tools used.
A final issue that may arise in connection with Board member’s education is the expertise of management companies hired by Associations. Under Colorado law, association managers and management companies are currently not required to be licensed and therefore don’t have continuing education requirements for licensure. However, in order to stay competitive, managers are well served to be, and largely are, very tech and technology-security savvy. While the Nonprofit Corporation Act §401(2) specifically states that directors or officers are “entitled to rely on information, opinions, reports, or statements … prepared or presented by” a variety of experts, this provision does not absolve the Board members of their ultimate duty to manage and make decisions for the governance of the Association.
The CCIOA §38-33.3-209.7 sets forth the requirements related to Owner education. This provision includes a mandate that is not present in the Board education provision and states that the Association shall provide, or cause to be provided, education to Owners at no cost at least once a year. The provision goes on to state that the Board is to determine the criteria for compliance with this section. There is little guidance in the CCIOA pertaining to this requirement. This section of the Act provides that the education must address “the general operations of the association and the rights and responsibilities of owners, the association and its executive board under Colorado law.” Technology education could fall within the “general operations of the association” language. Examples of technology training that might be offered to the Owners are:
- Training on the capabilities and navigation of the Association website and social media pages.
- Accessing governing documents, meeting minutes, and other administration documents.
- Training in making electronic payments.
- Conferencing applications for attending Board and Owner meetings.
- Training in using the resources available on the Colorado Department of Regulatory Agencies Website.
- Training in attending webinars and other online education.
As with the education of the Board members, the Association must keep in mind the security and privacy issues of providing these educational opportunities, as well accessibility to Owners who do not have access to the necessary technology.
When carrying out their duties to the association, the members of the Board must consider how best to educate themselves and provide education for the Owners. The lessons in the pandemic, we believe, show that using technology to include owners in association operations has been extremely helpful and has resulted in easier and more robust participation on the part of the owners. We hope the lessons learned during the pandemic with respect to the use of technology can continue to foster a lower-cost exchange of information and greater participation by the owners.
Moeller Graf was founded in 2005 by Tim Moeller and David Graf. Both partners have been practicing for 20+ years. David Graf is nationally recognized as a leader in the community law space with a heavy emphasis on educating others. Tim Moeller has dedicated extensive time to legislative groups who lobby on behalf of improving the HOA experience and outcomes. The firm currently employs eight additional attorneys, all with a diversified skill set ready to tackle the challenges that any situation may bring. The firm has dedicated its practice solely to representing the entity of Common Interest Communities. The practice is a full-service firm within community law focusing on; transactional, litigation and collections/recovery work. The firm currently has two locations in Colorado and is seeking additional regional expansion in the coming months. The client and manager experience is at the forefront of how Moeller Graf believes it is differentiating and defining itself as a premier provider of community law in Colorado.