Making Sense of Electronic Board Meetings... and Doing Them Well

There was a time when a board's desire to take action without a meeting would give me heartburn. Following the common bylaws provision that, in my world, tends to reflect DC Code §29–406.21.a which allows a nonprofit board of directors to take action without a meeting (face-to-face or conference call) "if each director signs a consent in the form of a record describing the action to be taken and delivers it to the nonprofit corporation."
  
In real space this process is called taking action by "consent ballot" and it is laborious! When boards need to make decisions in short order, corporate and/or board secretaries can find themselves juggling an onslaught of identical motion forms, each carrying the signature of a single board member - some that come in by fax, others by e-mail and some that won't come in for three days because the director is on a Rhineland River Cruise!

And so, when urgent calls for immediate action come up, how often have I heard board or executive leaders say "Why don't we just facilitate approval by e-mail??"

photo: rawf8/adobe stock

When I've heard that, I would take a deep breath and explain carefully that the validity of any action taken by e-mail could be dicy.  First of all, not every corporate lawyer will recommend taking action by e-mail. But even if they do, key standards would still need to be met such as making sure the actions are clearly stated, that there is unanimity in director responses and that follow-up actions are not taken until after all votes are collected. Fulfilling those basic requirements can feel like an uphill climb, especially when there is a real sense of urgency behind the proposed action.

In order to accommodate an increasing interest in handling board business between meetings, the practice of holding "electronic meetings" is gaining traction. (Note that the term "electronic meetings" can also be used to describe audio and video conference calls. I know it can be confusing, but suffice it to say that, here, I'm specifically referring to deliberations and actions that take place via e-mail or an online discussion board.)

Anyway, when boards want to handle their meetings and actions "electronically" there is a real need to make sure that such actions are taken "above board" - that they are clearly documented and kept with other board minutes and actions. After all, it would be a shame if a board motion were called into question for failure to follow the letter of bylaws and/or statute.

Fortunately, there are a number of good practices that can be employed to make sure your electronic meetings that are both efficient and compliant. Here's what I would recommend:
  • When in doubt, be sure to consult legal counsel to confirm whether electronic meetings are permissible under your state's corporate statute. Legal counsel can also be a good resource for establishing best practice guidelines for your organization. 
  • If your bylaws are silent on how to take action outside of live meetings, it's probably a good idea to make amendments that reflect what is/is not permissible. 
  • If the bylaws do permit electronic board actions, it's important to adopt intentional electronic meeting practices and document them in a board policy or SOP.  
  • Remember to employ parliamentary rules and procedures when establishing formal electronic meetings procedures - especially if your bylaws name a particular parliamentary authority. 
  • When possible, avoid using e-mail to facilitate discussion and voting - it can be clunky, not very secure and difficult to retain. Board portals with polling features and discussion boards can be great resources for keeping board actions contained and secure.
  • Consider creating a form template for stating and contextualizing electronic motions - it helps to ensure consistency and makes deliberation easier for the board.  
  • Some bylaws require electronic meeting motions to be ratified at the next live board meeting. Whether it's required or not, ratification is a helpful way to cover your bases and ensure continuity of board meeting records.
What are the challenges you face when trying to make sense out of how to do electronic meetings and voting? What strategies and processes have worked for your nonprofit to ensure electronic meetings efficient and effective?

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Rachel Miller-Bleich, MA, CAE is a nonprofit governance consultant and owner of MillerBleich Consulting, LLC. To learn more, visit www.millerbleichconsulting.com.

© 2020 Rachel Miller-Bleich. All rights reserved. Permission granted to excerpt or reprint with attribution.

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