Have you ever found yourself in need of a quick decision from your Board? Tempted to get an answer by email vote? Haven’t we all…but it’s not that simple!
Unlike a board vote in-person or by teleconference, there are special rules that pertain to email voting in 44 states (BoardEffect Research Report: U.S. Laws Governing Nonprofit Boards and Electronic Voting, March 2012, Isabelle Clérié and Dottie Schindlinger). Most require participants to “hear each other” or “communicate concurrently” – and neither test is met by email exchanges.
What is the thinking behind these rules? In order to meet their Duty of Care, board members need to properly deliberate matters before them. This includes considering and, where appropriate, discussing the opinions of their fellow board members to come to an informed conclusion. Proxy voting on board matters is prohibited for similar reason – the person casting a proxy vote hasn’t considered new information that might be brought to the table by other board members.
But here you are with a matter that needs a board vote now, and your next board meeting is weeks away – what do you do?
By meeting certain conditions, you can ensure the validity of an email vote. First, every member of your board must respond to the call for a vote, in writing (by email) – so you will have to chase down any laggards. Second, the vote must be unanimous (less any legitimate recusals or abstentions, such as for conflict of interest), allowing the board chairman to declare the motion passed by unanimous written consent. Finally, the board should affirm the email vote at your next meeting so it is recorded in the minutes.
What recourse do you have if there is not unanimous consent? Because everyone can “hear” and “communicate concurrently,” teleconferences only require that a quorum be present for the discussion, and a majority vote carries the motion. Or you can of course call an interim meeting of the board. But in either case be sure you follow your bylaws regarding required meeting notice!
is Kansas one of the 44 states?
Yes. The complete list can be found at http://www.boardeffect.com/wp-content/uploads/2015/01/Electronic-Voting-Report-FINAL.pdf.
Do E-mail committee votes Also have to be unanimous?
Committees don’t carry the same duty of care that boards do, so they do not.
I am Judy Sampson President of the Pembroke Chamber of Commerce in Pembroke NC. We have been approved as of Sept 24th for the Pembroke Chamber of Commerce Foundation. Do I have to have the same board of directors? Since I am the President of the Pembroke Chamber of Commerce who submitted the application will I also be the Executive director and President for the Foundation? Need some mentoring on the Foundation management/bylaws Thanks Judy
Judy –
This is more of a conversation than an email answer. I will give you a call later today.
Claire
Good read — thanks, Claire! And nice “seeing” you. Now I have to go check out my state’s rules. Appreciate the heads up!
Hi Claire, just read your article and it is definitely relevant here in California which is one of those 44 states you talked about. I concur based on reading our state’s (California) statutes that email votes must be 100% unanimous and also with 100% response rate from the sitting board. That makes votes by email a bit tricky if you have any board members who are disengaged or semi engaged and don’t respond when you are really counting on them.
Two strategies I have used to overcome this with client associations are, as you mentioned, calling a teleconference, which meets our state’s definition of a meeting with two way communication in real time and only a quorum required for binding resolutions. The other strategy we’ve facilitated is empowering either the president/chairperson or executive leadership with the ability to make timely decisions via delegation in the Bylaws, which must be followed up with ratification by the entire Board at their next meeting. It isn’t structured as a license for the executive leadership to do as they please though… their actions only follow consensus via email of the sitting board. After all, their decisive actions must later be ratified by board quorum, so it guarantees some accountability that their actions must reflect a later quorum decision of the board.
In this day and age, sometimes split second decisions must be made. If you don’t have a means for the organization to act when moments count, you are at a major disadvantage. Where it becomes most relevant is in crisis situations. This is almost a perfect segue to another great topic, which is leading your chamber/association through a decision process in a crisis situation.
Can you send a proxy form and e -signature via e- mail ?
Trish
What about voting with a Facebook poll?
Can a 5013c fill a board vacany via email vote to the other board members in Massachusetts
Can a Board member cast a vote for their spouse to fill a vacant seat on the board?
Does this vote have to be unanimous
The origination by laws calls for a majority vote
Does that still apply?
Any board action, including filling a board vacancy, can be taken by email as long as its unanimous with all board members voting. Your bylaw requirement for a majority vote is trumped by state law requiring unanimous written consent.
I would strongly advise against having two spouses on the board, but there’s nothing that precludes it.
Is Virginia one of these 44 states?
Yes.
In fact no matter if someone doesn’t understand then its up to other viewers that they will help, so here it occurs.
2021 – This recently came up in a 501c3 non-profit I chair; our legal counsel reads this differently. We have one board member who has received the emails but consistently does not respond. Every other board director responds and votes affirmatively. We have opted to go ahead with the actions. So far no one has challenged our decisions.
Have any of the laws changed for email board votes since you wrote your blog. We are in the stat of Hawaii. Our board seems to want to vote by email and ratify at the meeting, therefore eliminating any won’t participation/discussion. All BOD’s live in the complex and are easily accessible.
Thank you
The desire to eliminate discussion is exactly the reason these laws exist. The board’s duty of care requires a thorough discussion of issues to ensure all sides are heard before they are voted on.
I looked up Hawaii’s nonprofit statute, and the pertinent clause is 414D-144 Action without meeting. It clearly requires that all members of the board concur in writing, then sign a written consent that is filed with the board minutes.