Do Owners have the right to reach out to other Owners about Club issues?

Here's the deal. Under our governing documents, we are a strong-Owner, weak-Board, powerless-President organization. The Owners have the final say on all important decisions. As much as the Board may wish that it has the right to stop Owners from lobbying other Owners about Club matters, it simply doesn't. Under South Carolina law, each Owner has a right to obtain and use the Club's membership list as long as the membership list is not used to solicit money, for a commercial purpose, or sold to a third party. Any Owner has a right to communicate with any other Owner about club matters. And the Club has a duty to make available to each Owner the membership list.

The Valentine's Day Communique included a "reminder" that the Club's "Member Directory is for exclusive personal social use and convenience of Colleton River Club Members" and included links to two Club policies that purport to limit the use of the Member Directory. The Member Information & Guidelines Policy states that: the "[m]ember roster is for the exclusive personal social use and convenience of Colleton River Club Members. It is to be treated as a privileged and confidential list and is not permitted to be used for commercial purposes or group mailings of any kind. Exceptions will only be made at the Board level."(Emphasis added.). You might ask: can the Board do that? Well no--it can't.

The South Carolina Nonprofit Corporation Act (the "NPC Act") governs the Club. The NPC Act expressly grants to each Owner the right to obtain a copy of the "membership list." The NPC Act provides that ". . . a membership list or any part of a membership list may not be obtained or used by a person for any purpose unrelated to a member's interest as a member" and empowers the Board to limit the member from using the membership list to solicit money, for a commercial purpose, or selling the list to a third party. Fair enough. But the Board does not have the right to restrict "group mailings of any kind" if those mailings relate to the Owner's interest as a member. The Board simply doesn't have the exclusive right to communicate to the Owners about Club issues.

South Carolina law is clear that "the bylaws of a corporation are invalid to the extent that they are inconsistent with state law." Our Covenants provide that "[I]f there are any conflicts between any of the Governing Documents and South Carolina law, South Carolina law shall control. Both SC law and our own governing documents make clear that the Board cannot adopt policies that undercut rights given to Owners by state law. And the Member Information & Guidelines Policy does just that.

The Board could probably find a lawyer who would argue that the "Member Directory" is not the "membership list" and the Board can limit the right of an Owner to use the Member Directory. Or they can argue that the Club isn't required to provide email addresses when the Club produces a membership list. Good luck with those arguments. Most communications from the Board to the Owners use electronic mail (both periodic email blasts and ballots use electronic mail). It would be quite interesting to see if a court would buy the argument that the Board can bar members from using emails from the Member Directory when the Club is required by statute to provide any Owner with a Membership list for the Owner to communicate with other owners about Club issues. Like Clint Eastwood says: go ahead--make my day! But it would probably make more sense for the Governance Committee to simply bring the policy into compliance with state law.

That said, the interesting question--as is frequently the case--isn't whether an Owner can communicate with other Owners: it's whether an Owner should communicate with other owners. Funny, I don't remember this being an issue when the past presidents hijacked a number of distribution lists and peppered the Owners with multiple emails. It's almost like the Board likes some advocacy documents and doesn't like others. Owners who don't want to receive emails about Club matters can simply delete them or--if the option is available--unsubscribe from the list. Just like they do for every other unwanted email that they receive. 

Personally, I believe that it's counterproductive to send email to people who don't want it. That's why I started this Blog. Each and every person who reads this post is doing so because he or she (sorry, those are the only two genders I recognize) took the trouble to access this Blog. Just for reference (and if I understand Google's metrics): 193 unique visitors have viewed at least one of my posts; 175 people read my most popular post (A little History About Board Elections--and a Wakeup Call for the Board); and 3,200 readers have read individual posts (some readers have probably read a post more than once). Generally speaking, with 48 hours, about 35 people read each new post--and another 25-50 people read the post within the next week. Read my Blog if you like--or don't. Let me know if you find any factual errors and I'll correct them. I've told fewer than 20 people about the Blog--the rest of the visitors heard about the Blog from friends. There seems to be some interest in hearing, as Paul Harvey used to say, "the rest of the story."