In our July "Ask the Experts" webinar, we heard from Attorney Morgan Bryant of McCabe, Trotter & Beverly, P.C. on Communicating in a Crisis. Though this topic is particularly relevant in today's environment, it is one that is always of special importance to board members as it touches on communications not only surrounding Covid-19 but also those relating to other crises such as severe weather events like hurricanes or extended periods of below-freezing temperatures. 

Defining a Crisis

The first step in coming up with crisis-related communication for your community association is determining if a situation is actually a crisis. Though the examples that easily come to mind are the Covid-19 pandemic and hurricanes, crises can really be any number of occurrences that may arise in a community association. Ms. Bryant advises that to determine if something is truly a crisis, board members should examine the situation to see if there is potential for the community association to be exposed to some kind of legal liability or property damage and, if so, that there is a short amount of time to respond to the situation. 

While it's easy to closely tie the terms "crisis" and "urgent" or "hurry" together, it isn't advised that board members hurriedly draw together communications as that can sometimes lead to important factors being overlooked. One of the first things that boards should do is ask themselves if the type of communication they need to send out should be subject to legal review. Does your board need to call their attorney for advice prior to sending out crisis communications? Perhaps you won’t always need to take the extra step of bringing in legal advice, but it's a good thing to keep in mind depending on what type of situation your association is facing. 

Preparing a Crisis Communications - What do State Statutes and Governing Documents Say? 

In our technology-reliant world (and especially lately with social distancing requirements), many people, board members included, favor email as a primary form of communication. But how does this work for association boards so that board members may be sure they're keeping in line with their governing documents and state statutes? Well, it depends.

For instance, if you need to send out a crisis communication, does the board have to unanimously agree to allow the communication to be sent via email? This will likely depend on what your governing documents say - some might say yes, whereas others may say a majority vote is just fine. Ms. Bryant encourages board members to review their governing documents now so that they're aware of the rules regarding unanimous consent before a crisis situation ever arises. 

But what if your governing documents don't reference sending out important communications to the membership via email? Is there any law in North or South Carolina that specifically requires unanimous consent when using electronic voting in regard to sending out communications to the membership? The answer is no - neither North nor South Carolina has anything that addresses communication decisions made by boards of directors. However, informal decisions made by boards outside of regular meetings usually require unanimous approval. This would, of course, apply to decisions made via email conversations. If your association's documents don't say anything about email, it is likely due to the age of the association. In North Carolina, unanimous approval is required to make a decision via email. If it is a decision related to crisis communication, then you absolutely should require unanimous approval in South Carolina as well. 

Another question board members may have is if the requirement of making a formal motion prior to the communication being sent out is necessary. In a crisis situation, probably not. The process of calling the motion is to ensure everyone knows what the vote is about, and if there has been ample discussion among board members via email, everyone can go back through the emails and read through the information whenever they'd like. 

Who Should Put Forth the Crisis Communication? 

Again, this is something that is really up to each individual board of directors. If no one has been designated to be the board's spokesperson, the board president is usually the spokesperson by default. If everyone receiving the communication knows it is coming from the president, then by law it is considered official communication from the board. However, the board does have the power to change the designated spokesperson if needed. 

By What Means Should Crisis Communication be Sent?

In no circumstances should boards of directors ever use social media to send forth crisis communications or any other types of official communications. Even if something is said on social media that the board may need to respond to, board members should respond to that person or situation outside of the social media platform. It is never wise to engage on a social media platform, especially when there may be sensitive information involved. 

You can of course send out crisis-related communications via email, but board members should be careful here as well. What if, for example, your community has a lot of elderly residents who don't all use email? In this example, you could still send the communication via email and then perhaps send a follow-up letter. 

Now that we've covered how to define a crisis, prepare the communication, who should send it and how we must discuss what the communication piece should say. Stay tuned for the second part of this article where you'll learn about the content of the communication, three questions to consider in these types of situations, and a warning about inadvertently creating crises.

If you missed the live webinar, you may view it here, or visit your Board Member Toolbox for access to a multitude of resources and CAMS Trusted Guidance.