Can Association Boards of Directors Vote by E-mail or Fax?

2 min

Q: Can association Boards of Directors and Executive Committees vote by e-mail or by fax? For instance, if a Board of Directors wants to approve a contract, can staff circulate it to the Board and ask for the Board's approval by e-mail, fax or mail? What if a committee wants to report their hotel selection for an upcoming association conference to the Executive Committee and ask the Executive Committee to approve the selection by e-mail? Would it matter if these communications were interstate or intrastate?

A: The applicable law in this instance will be determined by where the association is incorporated, and is unaffected by whether the communications are intra- or interstate. Most (but not all) state nonprofit corporation statutes only permit Boards of Directors (and committees of the Board, such as Executive Committees) to act through a meeting (in-person and/or teleconference) or through unanimous written consent (essentially, all Board members vote in writing, and all vote the same way). Mail, fax and electronic balloting is not permitted per se in most states for such Board actions - unless, of course, all Board members vote and all vote the same way. The rationale behind this requirement is to encourage (and require) full debate and deliberation by Boards of Directors (and their committees) on issues prior to taking action - unless the decision is unanimous.

While most state nonprofit corporation statutes do not (yet) expressly permit unanimous written consent to be in electronic form, there is movement in that direction. Moreover, the typical requirement that the consent be "in writing" has been construed by some to permit electronic "writings."

Finally, while Boards of Directors and Executive Committees could take "polls" by e-mail, for example, such polls, even if supported by a majority, could not constitute votes per se and would be merely advisory in nature. Such polls would need to be ratified at a subsequent Board of Directors or Executive Committee meeting in order to carry the weight of a vote and constitute a Board action.

Note that these rules generally do not apply to membership votes, where mail balloting - and, in some instances, fax and e-mail balloting - is permitted by most state nonprofit corporation statutes.