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!