We’re having to adjust to a different world right now. In general, it’s always best to have an in-person meeting on matters of great importance. This provides the fullest opportunity to discuss, debate, consider alternatives, and come to agreement. When that’s impossible, you have to look at alternatives. This article lays out the options, as best we understand them, for a nonprofit organization. As always, nothing in this article constitutes legal advice. And things are changing rapidly, so you must keep up to date with the latest rules for your state of incorporation.
The laws of the state in which your organization is incorporated are the first item to check. States have differing requirements for virtual meetings. In Washington State, for instance, we have this guidance for membership meetings, with similar language for board meetings:
Except as otherwise restricted by the articles of incorporation or the bylaws, members and any committee of members of the corporation may participate in a meeting by conference telephone or similar communications equipment so that all persons participating in the meeting can hear each other at the same time. Participation by that method constitutes presence in person at a meeting. RCW 24.03.075
Many states have made the applicable laws available online for any lay person to read. In some instances, the plain sense of the law is clear. In others, you may need an attorney to interpret the law.
Fundamental principle of remote meetings
Note the key phrase, so that all persons participating in the meeting can hear each other at the same time. This is fundamental to any virtual meeting. Don’t play tricks like the condo manager who left the room, called an absent board member on the telephone, and then returned to announce how the absent member had voted.
There are now emergency orders allowing local government bodies to meet remotely, and some states have authorized nonprofit organizations to do so also. Be sure to check your specific law or orders, and see how long they apply.
Robert’s Rules of Order
Robert’s Rules of Order Newly Revised, 11th edition, addresses electronic meetings on pp. 97-99. The guidance is that such meetings must be authorized in the bylaws. If Robert’s Rules is your parliamentary authority, even if your state law allows you to meet remotely as in the example above, you can’t do it unless you have adopted that option in your bylaws, or unless there is an emergency order allowing it.
Annual membership meetings
If you are scheduled to have an annual membership meeting in this time of social distancing, and your bylaws don’t allow for remote meetings, what can you do?
The first question to ask is what business needs to be transacted at the meeting. Is it simply an opportunity for the board or staff to report to the members? If there’s no business, Robert’s Rules offers a solution! You can call the meeting, hold it without a quorum, and go home.
If a quorum fails to appear at a regular or properly called meeting, the inability to transact business does not detract from the fact that the society’s rules requiring the meeting to be held were complied with and the meeting was convened—even though it had to adjourn immediately. P. 347.
Another option is to call the meeting without a quorum and vote to reschedule it to a future time (technically this is called “fix the time to which to adjourn”).
If you decide to hold your annual meeting electronically, there are a host of issues to address. Refer to Jim Slaughter’s article “Let’s Have Our Meeting or Convention Online!” for a review of points to consider.
If you have an election to conduct, do your bylaws authorize a mail-in ballot? This could be one solution to the dilemma. There are also many excellent electronic voting services.
Check your bylaws as to the term of office. If the bylaws say, “for a term of one year,” and the year has gone by, the incumbents are then no longer in office. If the bylaws say, “for a term of one year and/or until their successors are elected,” the incumbents continue in office until you can hold the election.
If you do have important membership business, such as adopting a budget, one option is to hold the meeting electronically, in the teeth of your bylaws and Robert’s Rules, and ratify the decisions the next time you are able to meet properly. “To ratify” in this instance means to vote to approve an action that was improperly taken. It is most commonly used for emergencies. (There are other uses of ratification as well.)
If the body fails to ratify such action, those who took it are personally responsible for any costs or liabilities incurred, because they took it on their own, without the authority of the body. See Robert’s Rules pp. 101-102 and 124-125.
Postpone the meeting due to force majeure
Another option is to postpone the meeting. The board can decide that given the state of emergency, the meeting will be held at a future time. The legal doctrine of “force majeure” refers to an event that is construed as unforeseeable, unanticipated, or uncontrollable, and it may apply here.
Unanimous written consent in lieu of a meeting
For nonprofit boards, in addition to the suggestions above, there is another option. If state law allows, boards can take an action by “unanimous written consent in lieu of a meeting.” In order for this to apply, every single board member must write a written consent to the action proposed. If one of your members is off climbing Mt. Kilimanjaro, this won’t work. If one of your members votes against, this won’t work. It has to be truly unanimous. Each and every consent must be included in the minute book. Fax or email may be a way to do this.
We’re all learning new things in this tumultuous time. Whatever course you follow, be sure to consult your attorney! Please let us know what steps you take when COVID-19 cancels your meeting, and whether these suggestions are helpful.