Update on June 4, 2020 – Things have changed this spring because of the COVID-19 crisis. Some states have amended their laws or issued emergency orders changing their rules on remote meetings and email voting. This guidance may no longer apply. Check with your attorney before deciding what to do.
It is fine for board members of a private nonprofit to use Slack or other group messaging platforms to deal with administrative matters like when the next board meeting will be held. However, in general boards cannot use these platforms to conduct their meetings. Here we discuss the Washington State situation. Consult a qualified attorney to determine the law for your state and jurisdiction.
How can boards meet?
In Washington State, the Revised Code of Washington (RCW) authorizes nonprofit boards to meet in person, or by teleconference, if nothing in their articles of incorporation or bylaws prohibits it. The key requirement is that each member can see and hear each other. This isn’t possible on Slack or other group messaging platforms.
Don’t be fooled by RCW 24.03.85, which refers to meetings of MEMBERS of the body and allows them to vote by proxy or email. This DOES NOT APPLY to boards of directors.
A principle of legal interpretation
The guidance is that if the law allows certain things (meeting in person, meeting by teleconference), any other things that are not included are NOT allowed. The RCW doesn’t say in explicit words, “Boards may not vote by email or Slack.” However, that is the position regarding group messaging platforms. See our related post, “You can’t vote by email.” Note that as always, we are presenting information from a parliamentary perspective, and nothing here constitutes legal advice.
Exception: unanimous written consent
There is one exception. Boards may take action by “unanimous written consent in lieu of a meeting.” This requires that EACH board member assent to the action in writing, and that a record of the assent be included in the minutes. This can be done by fax.
Some attorneys maintain that printing out emails indicating consent is also acceptable. A question could be raised about whether the person who claims to send the email message actually did so. In any event, if one board member is off climbing Mt. Kilimanjaro or in the hospital, and can’t vote, then this type of vote is not valid. Every single board member must vote.
It’s great that we have new methods of communicating with each other, but don’t use a group messaging platform in a way that could get you into trouble. Be sure to follow the state laws that govern your organization.