By Michael J. Gelfand, Esq. / Published November 2016
Miscommunication and the consequences of the misunderstandings that follow create issues demanding attention. Perhaps as a consequence of changing times, e-mails are the focus this month.
E-mail security? Really? Is that not an oxymoron? With all the “news” generated about e-mails in public, litigation, and family disputes, are the contents of your e-mails actually a community association issue? Absolutely!
Do not assume that your e-mails are confidential. Although association business may not warrant WikiLeaks hacking and releasing association e-mails, in a number of circumstances the content of e-mails between directors or with management can be obtained by owners and opposing litigation parties through legitimate records requests. Frequently the inadvertent wording of an e-mail becomes the key “smoking gun” in community association litigation and other disputes, with significant, unanticipated consequences to the sender.
E-mail is a very valuable tool that promotes great productivity, especially to convey short, quick factual statements. This is especially so in voluntary associations where directors are not always available to meet.
Nevertheless, regardless of the potential value of e-mail, e-mail is a “one dimensional” form of communication. When you think about e-mails or texting with a parent, child, or sibling, you will immediately recall that e-mail does not (and is usually unable to) transmit nuances that make face-to-face communication so valuable.
Even if you cannot see the other person, for example, when speaking by telephone you hear the other caller’s tone, you hear background noises, you “hear” the silences, you hear the speed of speech—all adding tremendously to comprehending what is really being communicated and reducing the potential for misperceptions. E-mails do not allow for the same level of communication.
As we have observed over the years in so many contexts, ill-placed comments can weaken even the biggest organizations when seemingly “private” e-mails are revealed to the public. Nevertheless, despite the “outings” of e-mail, the presence of a keyboard and an Internet or cellphone connection prompts the most inappropriate comments that a speaker would never say on the telephone or face-to-face.
For all the above reasons, community association directors and management are urged to be circumspect as to what is written in e-mails. Take care to avoid inappropriate characterizations and subjective analyses of other persons.
In an effort to avoid sending an e-mail that may come back to haunt you in the future, before hitting the send button, ask yourself a few questions:
Frequently asking these questions before an e-mail is sent will provide you an opportunity to evaluate the objective and tone of your e-mail to ensure that your goal is achieved.
This begs the question of “how-to.” E-mailing to a community can be a tricky business. Simply sending a “blast” is not so simple. Most communities have found that sending an e-mail with each member’s e-mail in the “TO” window begs for everyone to “reply to all,” which can get bothersome, if not downright nasty, not to mention disclosing all members’ e-mail addresses.
Using e-mail’s blind carbon copy (BCC) process is good in theory. The problem is that invariably the sender forgets to paste the names in the “BCC” window, and again, member e-mails are sent to all.
Most communities have found that creating a “moderated” listserve is best. The listserve can preserve the confidential nature of e-mail addresses. Also, if set up properly, usually as “fully moderated,” there are no replies to all unless the moderators approve. This can help avoid ping-pong-like mail exchanges in your community.
Considering the nature of a community association’s “business,” legal duties, and relationships between those on the sending and receiving e-mails, using the right mailing software, such as a listserve, thinking before hitting send are imperative and can also help preserve peace in your community.
When you see something suspicious, what is a community manager or resident supposed to do? We have been trained by law enforcement to let law enforcement investigate and make the decision as to whether there is criminal conduct. What responsibility does a manager or resident have to act reasonably and not subject an innocent person to detention?
The importance of this issue is reflected by the fact that the Florida Supreme Court was asked to address it. The Supreme Court ruled last month that a person injured as a result of a false report of criminal behavior to law enforcement can sue when the party should have known that the accusations were false.
A potential bank robbery was the situation presented in Valladares v. Bank of America Corp., 41 Fla. L. Weekly S 252 (Fla., June 2, 2016). Bank personnel were warned to be on the lookout for a bank robber. The e-mailed warning included several photographs of the subject, a white male wearing a Miami Heat baseball cap, a tee shirt, and sunglasses.
On the same day that the e-mail was sent, a customer, appearing to be a Hispanic male wearing a black Miami Heat baseball cap and sunglasses, entered a bank branch to cash a $100 check. As the customer approached the teller’s desk, the teller thought the customer looked like the robber in the e-mailed description. The teller triggered the bank’s silent alarm. However, the teller never verified her observation by comparison with the pictures.
The customer never acted suspicious; he merely wanted to cash his check. A team of police officers stormed the bank and seized and handcuffed the customer. During the seizure, the customer was kicked in the head, causing severe injuries. Shortly thereafter, the police realized that the customer was not the robber!
The customer sued the bank for negligence, battery, and false imprisonment. The jury found the bank negligent and awarded the customer approximately $3 million. An intermediate appeal to the Third District Court of Appeal resulted in a decision to reverse and remand to enter judgment for the bank, concluding that a person who contacts law enforcement to report criminal activity cannot be liable for negligence.
On further appeal, the Florida Supreme Court quashed the Third District’s decision. The Court stated, “regardless of whether a wrongful reporting resulted in an arrest—public policy supports the conclusion that those who are injured as a result of innocent reports to the police should have access to redress for injuries.” The court held that a person can sue for negligent reporting when there is incorrect reporting as well as conduct on the part of the reporting party that rises to the level of punitive conduct, which is more than simple negligence.
The distinction outlined by the Supreme Court is important. The Court did not prohibit calling the police if you have reasonable suspicion that a crime is being committed.
The bottom line is that if you realize that you are mistaken, then you should promptly call the police and inform them of your mistake. It is improper to trigger a police response and not follow through to correct your error. Though not addressed by the Court, harm can occur not only to the wrongfully accused, but also to the police responding or bystanders when there is a response to a false emergency alarm.
Michael J. Gelfand, Esq.
Senior Partner of Gelfand & Arpe, P.A.
Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate, & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at firstname.lastname@example.org or (561) 655-6224.