Can Nonprofit Boards Vote By Email?
Attorney Gene Takagi and Emily Nicole Chan discuss whether nonprofit boards can vote by both mail and email.
Article Highlights:
Exploring the risks, benefits, and legality of voting by mail and email.
Can nonprofit boards vote by mail and email? As is true of so many matters, there are legal answers and sensible answers to this question, which may not be the same. Attorney Gene Takagi and Emily Nicole Chan discuss both in this helpful article:
One of the many Blue Avocado readers who contributed to this article by sharing their experiences and viewpoints commented, “Over the last year we had new members of our Board who used electronic communication as an extension of the board’s actions. It was a disaster.”
In sharp contrast, another reader was chipper: “We have had great success with making decisions between board meetings.”
We’ll start by discussing the legalities, then take a look at the advantages and disadvantages, and finally, we’ll offer guidelines and a sample policy for using email voting.
First, the legal issues.
Can nonprofit boards legally vote by email? The short answer: Yes, in most U.S. states, but typically only if the vote is consistent with the requirements for unanimous written consent — that is, when the vote is unanimous and in writing. Some states like Texas require only majority written consent.
Most states make provisions for boards to take action without meeting by written consent. Typically, this involves mailing the proposed action to each board member, and having each sign and return the written action to the board secretary. Once all the signed consents are received, the action taken is just as valid as if it had been taken at a meeting.
Many nonprofits use the rules for mail voting to guide their process of email voting. This may involve an email to each director detailing the proposed action, and an email reply from each director with his or her vote. In a “unanimous written consent” state, if all directors vote the same way, the action is taken.
The danger with email voting is that few, if any, states specifically authorize this practice. The problem is whether an email should be treated the same as a signed written consent.
With a signed written consent, the signature gives us some assurance that the director actually consented.
With an email without a signature, the consent could have been sent by anyone with access to the board member’s email account.
Should we accept an email that simply states “Yes” in response to a complicated proposal without further verification? If the director later claims not to have sent the email, the action may be nullified and could result in all kinds of problems, including lawsuits against the nonprofit and individual directors. And what if the email says “Yes, as long as we… ”
Is that an effective consent? Probably not.
One way to address the problem of verification is to have each board member sign the written consent and return the signed copy back to the board secretary — either by postal mail, by returning a scan of the signed consent via email, faxing back a signed copy, or using an authenticated electronic signature. But lawyers prefer that all of the original signed consents be included in the board minute book as evidence that the action was properly taken.
The many variations in how states regulate (or don’t even mention) email voting reflect the newness of the technology and this voting practice. Over time we can hope that standards emerge that most states will adopt, but in the meantime the standards differ widely.
And unfortunately there is no one place that lists the applicable laws for each state. A further complication is that different states assign these responsibilities to different departments. The National Association of State Charity Officials (NASCO) has a list of links to the appropriate authority in each state.
Email discussions can enhance governance.
“We require a two-thirds majority on all items we vote on,” comments Marcia Slagle of Oak Ridge, Tennessee. “Two years ago, our board adopted new guidelines that allow email voting on matters discussed at board meetings. I think it helps keep those members who are unable to attend a meeting in the loop about what has happened at the meeting, but also gives them a voice.”
Craig Pampeyan notes that at the all-volunteer nonprofit with which he is involved, “Votes via email work well, though there have not been any major policy change decisions we’ve conducted this way. All the board members are well-versed in the mission, activities, and much of the historical perspective of the nonprofit.”
In many organizations, board discussions by email enhance participation. This should not be discouraged. But more frequently, email voting is not used to promote thorough discussion and involvement. Most nonprofits are interested in email voting in order to make decisions without discussion or involvement — typically on items that appear not to need either.
Between meetings it may be more convenient to take board action by written consent done via email. But email voting can also serve to effectively discourage rigorous discussion.
Risks and problems.
Here’s an example: The ABC Organization has the opportunity to take on a government-funded program recently dropped by another organization. But the papers must be signed almost immediately.
The Executive Director decides that the program would be attractive and makes her case to the Chairperson.
The Chairperson emails the board a request for an email vote (to be followed by written consent) to accept the program and the funding. In the absence of discussion about the risks of taking on this work, it seems like a “no brainer” to the board members who then blindly approve the project.
Regardless of the ultimate decision, this too-common process is seriously flawed. The lack of discussion on a major action indicates inadequate oversight and may even be regarded as a breach of the directors’ duties of care. If the decision had instead been made at a board meeting, there would have been an opportunity for board members to ask questions, raise serious issues, and consider alternatives.
“I was really bothered when we were asked to vote in a new board member by email,” wrote one Blue Avocado reader who asked to be anonymous. “I wasn’t really against the nominee because I hardly knew him, but by the time I saw the email other people were sending, all replying with their ‘yes’ votes, I didn’t feel comfortable asking any questions.”
Along the same lines, Put Barber of Idealist comments, “The point of meeting and discussing something in a room together is that better ideas emerge in the course of such discussions and pitfalls are more likely to be identified.” He goes on to point out that “a telephone conference meeting, assuming the organization’s bylaws and the statutes of its state of incorporation permit that method, is preferable to email voting for many reasons.”
We suggest a simple safeguard: the executive committee (or the officers) can be assigned the responsibility of determining whether a particular action should be taken by email/written consent or at a board meeting. If the matter is routine or has already been discussed and widely agreed upon, an action by written consent may be appropriate.
And as reader Kellie Dyslin pointed out, it’s important to be sure that all such votes are recorded in the minutes of the organization, perhaps at the next meeting (actually, the written actions should be kept with the minutes).
On the other hand, if the matter is important or sensitive, and/or may have serious consequences for the organization, holding a meeting may become imperative.
Policy templates.
Laurie Prospero provides a good example of a simple but careful way to conduct email voting: “Prior to sending out the email request for a vote, the board secretary confirms the motion along with a mover and seconder. We tried to use the voting buttons in Outlook, but they don’t work if you are not on an exchange server.
Now we include the voting options in the email. We impose a deadline for the votes to be cast and ask board members to return their vote to the Secretary and Executive Director. The Secretary keeps a log of all the votes and reports on the results.
As the ED, I save each individual vote — and any comments — as a PDF of the email so that we’ll have electronic backup. The motion and the results of the vote are read into the minutes at the next scheduled board meeting.” Laurie adds that email voting is only used for items that don’t need much additional discussion.
Melissa Kaestner of Community Radio Fund of Canada shared the highlights of their well-developed “CRFC Guidelines for Conducting Board Business Online” (but note that these procedures would not be legally valid in most U.S. states):
“First, we have a private online website that is just for the board of directors, using Google sites. One page is dedicated solely to current decisions.”
“Second, we have outlined a procedure that includes how things are posted and timelines for the entire process. There are two types of work we do online: general discussions of issues and official business motions.”
“For official business motions:
- Discussion can precede or follow a motion.
- A director can move a motion, and should include a suggestion for discussion time.
- The Secretary (or relevant board member) will post the motion on the board’s online space.
- All discussion must follow the same email thread; other emails should not follow this thread.
- A motion needs to be seconded before discussion or voting.
- Discussion: Minimum 5 days unless all agree in writing to a shorter timeframe. Since we are not all online everyday, we need to allow reasonable time for people to discuss. Discussion time can be extended by simple majority of all board members.
- Chair (or mover) sends a summary of points and reminder that the motion is on the table after 3 days and again after 6 days if the discussion period is longer.
- Amendments: If amendments are deemed friendly by the mover, discussion then moves to the amended motion. If amendments are not friendly, then the proposed amendment will be discussed and voted on.
- Consensus: We should aim for consensus. If we cannot achieve it, then we vote.
- In the case of a vote, the chair or mover circulates email with a new subject with a vote name and number. Directors vote by sending an email with “MOTION on xxxx.” YES/NO/ABSTAIN.
The Community Radio Fund of Canada has generously made their complete policy available to readers; click here to download the PDF.
Sample e-mail voting policy.
In addition to the above guidelines, readers may find helpful the following Sample E-Mail Voting Policy we’ve developed for this article:
- Board actions may be taken by unanimous written consent.
- If an item for board action is best addressed before a board meeting, the following factors will be considered by the Board President before determining whether to ask for an action by written consent:
- How soon a decision is required.
- Whether the decision would be better made after further discussion and/or whether alternatives should be considered.
- Whether the action is a routine action that the Executive Committee can take in lieu of the board at a Committee meeting.
- Whether a conference call meeting can be scheduled and held (either just for discussion or if a quorum is obtained, to take a vote).
- Whether all directors have indicated they are unanimously in favor of the action and will be available to sign and return a written consent.
- If, after considering the above factors, the Board President determines it would be best to take the action by unanimous written consent, the Board President may have the Secretary draft the proposed action and email it as an attachment to all directors at their respective email addresses.
- The action shall allow a director to check that he or she is in favor of or opposed to the particular action.
- Each director shall sign and return the written consent to the Secretary by email (scanned copy of the signed consent) or fax within 24 hours unless another deadline is provided in the email. The original signed consents will be sent to the Secretary by mail or delivered in person at the next board meeting.
- Upon the Secretary’s receipt and verification of all written consents approving the action, the action is duly approved. Regardless of whether the action is approved or not, the Secretary will confirm whether the action has passed or failed by email to all directors upon receipt of all the individual written consents.
- The Secretary will file all individual written consents with the corporation’s minute book.
- The Board will ratify any action taken by unanimous written consent at the next Board meeting. The minutes of this meeting will record the ratification.
Finally . . .
As you can see, conducting legal votes by email is not as simple or as speedy as might be assumed at first glance.
To recap our suggestions:
- Check your national and state regulations on what’s permissible in your jurisdiction.
- Allow email votes only when they have been authorized by the executive committee or another authorized body or process.
- Have clear, written guidelines about how the votes will be taken.
- Follow up, when appropriate, with documentation of unanimous written consent.
- Be sure that all of the signed written consents are maintained with the board minutes.
- Be hesitant to use email voting: even in a rush, a board meeting via conference call can allow for questions and concerns to be raised about an issue that might not be obvious when first presented. And a conference call of less than a quorum can still serve as important feedback to the ED and the board chair as to whether the issue requires discussion.
Our thanks to Blue Avocado readers who contributed to this story, including Put Barber of Action Without Borders/Idealist, Donna Butchko, Kellie Dyslin of Youth Outlook, Melissa Kaestner of Community Radio Fund of Canada, Laurie Prospero of Owl Child Care Services, Craig Pampeyan of Mountain View/Los Altos Girls Softball, Marcia Slagle of Anderson County Health Council, and Kathleen Weaver of Shasta County Arts Council.
See also:
- Board Meetings by Phone: Legal? Good Idea?
- Ten Quick Ways to Invigorate Board Meetings
- Sarbanes-Oxley and Nonprofits
You might also like:
- A Nonprofit Partnership: How One Board Member Connected Two Organizations and Boosted Both
- Innovative Leadership — Culture Doesn’t Have to Eat Strategy: Tending to Human Factors During Strategic Planning
- Insider Newsletters: An Easy Way to Keep Your Board in the Loop and Engaged
- Board Horror Stories: How to Reduce Board Resignations
- Five Years and Growing: How One Nonprofit Built a Sustainable, Collaborative Mission
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About the Author
Gene Takagi is a California nonprofit attorney who also publishes the Nonprofit Law Blog. A recipient of Outstanding Barrister of the Year from the Bar Association of San Francisco, Gene speaks frequently about nonprofit legal issues, and has written articles on nonprofit governance for the American Bar Association.
Emily Chan is a student at UC Hastings College of the Law and Senior Production Editor of the UC Hastings Constitutional Law Quarterly.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. The opinions and views expressed in this article are solely those of the authors. They do not purport to reflect or imply the opinions or views of Blue Avocado, its publisher, or affiliated organizations. Blue Avocado, its publisher, and affiliated organizations are not liable for website visitors’ use of the content on Blue Avocado nor for visitors’ decisions about using the Blue Avocado website.
Our nonprofit has authorized voting by email in our bylaws. These email votes are restricted to one subject only (we don’t allow voting on a consent agenda or multiple actions in any way). As a matter of practice we limit these email votes to simple actions which we feel the entire board would consent to and on which they are already well-informed though this was not written into our bylaws. The intent is to avoid the necessity of arranging a special meeting to handle simple, time-sensitive issues. The board wants to keep the number of board meetings to a minimum and this is a tool to help that along (the idea of keeping board meetings to a minimum may sound like a bad practice to some but because of various reasons, it works well in our situation).
This is an excellent article. I was a founder of a non-profit whose board members decided via email to allow email voting, even though a vote had been taken at a board meeting not to allow such voting. Using this tool, a voting block was able to elect other board members and make major decisions which ending up changing the mission of the organization and it’s function and structure. It is a very bad idea that discourages discussion and allows private maneuvering off screen with only results on screen.
I can see all sorts of possible problems with email voting not the least of which is that these votes can be considered as meetings and at least in California can be subject to notifying all stakeholders of meeting places and times ahead of time. This practice just leaves too many unanswered questions.
I belong to a virtual organization. I understand that a legal meeting is one where everyone can hear. If a teleconference is scheduled and held, is it required that an email vote be unanimous? This would not be a board vote but a vote of the entire membership taken after the meeting. Comments, please.
How does Roberts Rules apply to email voting? I was told by an Roberts Rules expert that you can’t do any email voting. Our bylaws say that ‘The Robert’s Rule of Order’ shall govern the meetings. We are in California so can we do email voting or do we need to add that to our bylaws?
Bylaws can set up rules in areas that are not covered by law. For instance, bylaws can require an organization to have committees, while state laws do not typically require committees. If you are in California email voting is legal if you follow the guidelines, but only if your bylaws either permit it or do not address the matter.
You should stop using Roberts Rules unless you are a large contentious group where everyone is well educated, well-trained like the U.S. Congress. Instead adopt a modified Roberts Rules that allows, for instance, for alternative motions to be discussed at the same time, and for voting and discussion protocols that take new technologies into account.
I am looking for wording for bylaws pertaining to using “email voting”. I want to address quorums,%of yeas needed, etc……any suggestions out there?
Can email voting be applied in ratification of amended/revised By-laws considering 75% of the General membership of parents in PTA cannot attend or has no time to attend meeting ?
excellent discussion and insights thanks
I am a current active ex. Committee Member with a religious non-profit registered entity In PA. We have a Nomination & Election Commission (NEC) that has 1 Chief Election Commissioner (CEC) & 5 Election commissioners (EC). The CEC is wife of the Life long administrator and was appointed as a quasi CEC to a 6 year term by her husband who is the current Administrator of the institution. The remainder of EC appointments were made by the Board of Alderman who are all part of one group that prepared the slate of officers for the new administration for the new term (2017-2018). The selection process was via Nomination and the slate was prepared in favor of one group lead by the current administrator to enable take over complete control of the board of trustees and the ex. committee of which I am a part at present. Because I raised the issue of conflict, violation of ethics, cronyism & nepotism I was not given consideration and selected in the new slate that was recently released. The (NEC) has violated every rule laid out in the bylaws including not allowing individuals a chance to contest by significant delay in release of slate of officers (due by March 31, 2016), not providing form to enable eligible members file their candidacy, will not provide a list of all eligible voting members to enable a candidate canvass and seek vote and setting short deadlines for filing and holding election in dead of winter to prevent voters from out of state enable to attend and vote. Thus, what are the legal remedies and course of action in this matter. Can I obtain an injunction against NEC since the current BOT and Ex. Committee is powerless. Even the pioneer trustees who has a final say in any and all matters as per bylaws have been sidelined stating that NEC is above everyone and does not have to comply or follow the bylaws. I will appreciate any input, help or guidance you can provide. Thank you
Your specific situation is more complex than can be handled on this column. It seems to me that you will need to seek legal help if you want to understand your options in this specific situation.
I am a board member (11 total members) of a nonprofit organization. At a resent meeting we went into executive session to discuss compensation for the executive director. While various opinions were made no consensus emerged so the board chair said that we would continue via e-mail. Everyone weighed in with specific proposals for salary and bonus. I suggested that we take a step back and analyze what would be appropriate for like like agencies with similar budgets and it seemed apparent that our director was will above standard. The chair then e-mailed a motion proposing a specific salary increase and a specific bonus, this was seconded by another board member. The chair asked for us to e-mail her with a yea or nay on each (the salary increase and the bonus). She then sent an e-mail posting results…10 approving both and 1 opposing both naming me as the opposed votes.
I have two questions:
1. Is the vote/discussion procedure okay under Roberts Rules?
2. Should I have been indicated as the 1 opposing vote?
Appreciate thoughts as the chair believes that this is covered under the Roberts Rules.
I am a board member (11 total members) of a nonprofit organization. At a resent meeting we went into executive session to discuss compensation for the executive director. While various opinions were made no consensus emerged so the board chair said that we would continue via e-mail. Everyone weighed in with specific proposals for salary and bonus. I suggested that we take a step back and analyze what would be appropriate for like like agencies with similar budgets and it seemed apparent that our director was will above standard. The chair then e-mailed a motion proposing a specific salary increase and a specific bonus, this was seconded by another board member. The chair asked for us to e-mail her with a yea or nay on each (the salary increase and the bonus). She then sent an e-mail posting results…10 approving both and 1 opposing both naming me as the opposed votes.
I have two questions:
1. Is the vote/discussion procedure okay under Roberts Rules?
2. Should I have been indicated as the 1 opposing vote?
Appreciate thoughts as the chair believes that this is covered under the Roberts Rules.
We aren’t experts on Robert’s Rules and don’t know enough about the specifics of your situation to comment.
Hi Peter … good questions! We are a nonprofit with a similar number of board members. I help keep the records for the Board Secretary, so I see all the actions at one point or another. Typically our board only uses email votes (which they have provided for in the Bylaws) to do housekeeping votes, or votes on spending items that exceed the CEO’s allowable limits, which don’t require formal meetings.
The initial email is sent by one of the Board members as “the motion,” and as soon as a second is recorded, and any final discussion is either held or waived, it’s then sent around for final approval.
We note any dissenting votes, so that’s necessary, though it’s rare for housekeeping and spending items to garner any “no” responses.
Thus, unanimous written consent provides the vehicle through which a nonprofit corporation can take advantage of the convenience of e-mail, but comply with statutory requirements.
I’m a board member of a Not For Profit in NJ. Recently we’ve been getting emails from the president and or VP requesting votes on items, some having been discussed prior some have never been discussed before. This is a practice we’ve never used before, and never approved as a policy. I’m not happy for many reasons, and would appreciate some feedback. 1. How can you ask for a vote without a motion? Without anyone seconding it? Then how do you record it in some sort of minutes? The emails go back and forth with comments, yet nobody is recording minutes. How can you ask for a vote when you don’t even know when or if you have a quorum? Most recently the email vote will have an effect on the outcome of an upcoming election. It’s a slippery slope, a handful of executives and board members are controlling things without discussion. I refuse to take part in this type of governing. We have a membership to represent, and responsibilities to them.
Good questions! Before I answer, let me preface by saying we have a provision in our Bylaws to allow for email voting on housekeeping and basic spending items exceeding the CEO’s allowable limits (elections excepted – those have to be done in person or sent in to be read in at the actual meeting).
How can you ask for a vote without a motion? Without anyone seconding it? Our items are sent out as a motion by one of the Board members to the rest of the members, and a second is called for (along with either any further comments (“discussion”) or waiver of any further discussion by the members, before the vote is tallied.
How can you ask for a vote when you don’t even know when or if you have a quorum. We assume that all members will see and respond to emails, and require a clear majority of the total voting members for passage at any rate, or the motion fails and we’ll have to reconsider it at the next meeting.
Then how do you record it in some sort of minutes? The emails go back and forth with comments, yet nobody is recording minutes. As assistant to the Board Secretary, we follow all the exchanges and I keep copies of those. We draft Special Board Action Minutes, which capture the motion and vote, and those are approved by the members at the next formal meeting, along with the minutes from the past meeting(s).
It’s not the most ideal way to do things, but it does simplify things when it comes to not having to round up everyone for approving more “day-to-day” actions.
Hope that helps!
On an e-vote for a California non-profit, what happens if one person does not respond to the vote but acknowledges offline that they don’t plan to?
All other members voted “yes.” Can the motion carry by majority vote or does everybody have to respond?
The e-vote must follow the state requirements, and in CA that would require unanimous written consent, which would not be present here if one member does not respond.
Here is a link to the statutory language that supports this: Corporations Code for Nonprofits – Section 5211(b)
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CORP&division=2.&title=1.&part=2.&chapter=2.&article=1.
MY NAME IS ALICE FERNANDEZ THE QUESTIONS I HAVE IS WE ARE A NON PROFIT PARK. WE HAVE 150 COACHES HERE AT SHERWOOD LAKE MOBILE HOME PARK. WE JUST HAD A VOTING FOR NEW BOARD MEMBERS WE SENT IN OUR BALLOTS OR MAIL THEM INTO THE OFFICE. CORENA SET IN AND ACCORDING TO GOVERNOR NEWSON HE OK BY EXECUTIVE ORDER N-33-20 TO CONT THE BALLOTS BUT WEAR MASKS AND STAY 6 FT AWAY. WHAT HAPPEN THE OLD BOARD MADE EXCUSES WHY WE COULD NOT COUNT THE BALLOTS, SO IT WAS NOT DONE IN THE MANNER IT WAS SUPPOSE TO BE. IS THERE A WRONG LAW THAT THIS BOARD SHOULD HAVE CARRED OUT THE VOTE. WE ARE GOVERN BY THE STATE ALSO. WE GO BY THE BY LAWS OF THIS PARK AND THE OLD BOARD JUST TOOK UPON THEM SELF TO MAKE THERE OWN LAW.
Hello to all.
My name is Tosh Nishimura and I am the Secretary of a Not for Profit, Men’s Association of a Golf Country Club in California.
There are 6 BoD and we would like to increase it to 7. Our by-laws, amended in 2004, reduced the BoD from 7 to 6.
The by-laws stipulate that any Article or Amendment change, on the number of BoD, must be voted on by the general membership.
After a lengthy discussion, the BoD unanimously voted the change. An email went out the membership explaining our decision and asked for their YES or NO vote on the matter.
We have 70 members in the Association, of which 30 voted YES with 1 No vote. We’re waiting for the stragglers to turn in their ballots.
The email notice and e-vote ballot was done because of COVID-19, Social Distancing and not everyone plays golf on weekends.
Prior to COVID-19, annual elections were handled thru in-person voting with a hard copy ballot.
Was what we did, LEGAL?
We would also like to e-vote for next year’s BoD, in mid November. Can we legally do that?
Thank you very much.
Regards,
Tosh Nishimura
Secretary
Sent from my iPhone.
My Name is Nathalie Marie Alenski. I am on a board of a condominium in New York. The board strictly functions on email & voting by email is a requirement or so I am told after I was appointed to board. When we have a community meeting no votes are taken in front of community except to approve reading of minutes. E-mails are NOT in our by laws as a means to communicate nor did I ever sign on a dotted line for such. I am now being removed from the board for failure to answer or reply to up to 50 emails a day. Ridiculous. Is this a proper way for a board to function. It has been going on for 10 plus years and many, many details are left out of community minutes that are never mailed out to owners. Our community is very much left out in the dark and the board functions by three main people for 15 years. We have 5 on board. Our community also just went full service and these main people hold on to hybrid maintenance when it suits them. I hope you can offer words of wisdom.
Is it legal for a non-profit’s board to be sent an email which states, “A non-response to this email will be counted as a “Yes” vote.” in regards to approval of agenda items at an annual meeting?
It would be GREAT if this content was updated!