Q&A #109 – Can Board members insist that meeting minutes reflect their dissent?

Question: I serve on the Board of Directors of a nonprofit organization. Recently I strongly disagreed with my Board colleagues regarding their decision to approve a particular transaction, but the motion was approved despite my dissent. I want the record to show that I dissented. Do I have a right to insist that my position to be reflected in the minutes of the meeting?

Answer: The right of Board members to insist that their dissenting positions be reflected in the Board meeting minutes is ultimately determined by the organization’s Bylaws and the applicable state nonprofit corporation statute. Your state’s nonprofit corporation statute may provide Board members with a right to have their dissenting vote reflected in the meeting minutes, but there is generally no requirement that meeting minutes articulate the reasons for the dissent.

It is common for state nonprofit corporation statutes to address dissenting Board votes, since Board members are subject to fiduciary duties that can potentially be called into question by their decisions. Thus, Board members, like you, who strongly disagree with a particular Board action may wish to protect themselves by having a record of their dissent.

Under the D.C. Nonprofit Corporation Act, for example, one way for a Board member who dissents or abstains from a Board action will not be deemed to have assented to the action if either “[t]he dissent or abstention is entered in the minutes of the meeting,” or [t]he director delivers notice in the form of a record of the director’s dissent or abstention to the presiding officer of the meeting before its adjournment or to the corporation promptly after adjournment of the meeting.” See D.C. Code § 29-406.24(d).

A provision like this would give you a strong argument for having your dissenting vote reflected in the meeting minutes. Most Boards should be receptive to this request if made respectfully and in a manner that does not seek to undercut the will of the majority.

However, there is probably little recourse if the Board refuses to accommodate your request, unless the Bylaws or applicable state nonprofit corporation statute specifically provide otherwise. Board meeting minutes should be voted on by the full Board, so it is ultimately the Board vote rather than the insistence of one particular Board member that determines the content of the minutes.

Further, it would arguably be improper to demand that the minutes include the reasons for your dissent rather than merely reflecting the fact that you voted against the motion. Board meeting minutes are supposed to constitute an accurate record of the decisions and actions taken by the Board, not a vehicle for advocacy or continuation of an internal debate.

Planning Tip – Board meetings should generally be a place for concise discussion of difficult issues, not for extended debate or heated arguments. In the event your organization is dealing with a contentious issue, give Board members plenty of advance notice and opportunity to share their opinions about the issue prior to the meeting. Consider their input and make a good faith effort to address valid concerns prior to bringing the motion to a vote. This approach will often make Board discussion more efficient and less heated.

In the event the Board refuses your request to reflect your dissenting vote in the meeting minutes, you should at least deliver a short written notice expressing your dissent to the appropriate officer of the organization and keep a copy of this notice in your records. This is an alternative way of documenting for the record that you disagreed with your colleagues on this issue.

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