Q&A #61 – Are Board members allowed to vote by email?

Question: I serve on the Board of a nonprofit that generally meets quarterly.  An issue recently came up that requires immediate action. Can we vote on this issue by email instead of calling an additional Board meeting?

Answer: This question raises two distinct, but related, issues: whether the Board can take action by written consent in lieu of a meeting, and if so, whether this written consent can be provided by email. The answers are determined by your organization’s governing documents and the applicable state nonprofit corporation statute. Most states allow nonprofit Boards of Directors to take action by written consent in lieu of a meeting if 100% of the Board members approve the proposed action in writing, so long as this is not prohibited by the organization’s Articles of Incorporation or Bylaws. The question of whether this can be accomplished by email is often a more difficult one.

The challenge with email voting is that many state nonprofit corporation statutes specify that each Director must “sign” a consent describing the action to be taken. This language is often found in the statutory provision with the heading “action without meeting,” or something similar. It is often not clear under the statute whether an approval by email counts as a “signature.”

The safest and most conservative approach (assuming state law and the organization’s Bylaws allow it) is to circulate a written resolution describing the proposed action and require each of the Board members to sign and date on a signature line with their name and return the signed form to the Chair, President, or another appropriate organization official. Use of electronic signature software (e.g. DocuSign) is generally acceptable, but check your state nonprofit corporation statute.

Planning Tip – It is a common flaw for nonprofit Bylaws to inadequately address the use of modern technology in Board voting processes, especially where the Bylaws have not been updated in many years. In your next Bylaws review, make sure the Bylaws clearly allow Board meetings to be held by teleconference and specify how Board actions by written consent in lieu of a meeting will be handled. Read the applicable provisions of your state nonprofit corporation statute closely, as there are virtually always specific legal requirements on these matters and the Bylaws must be consistent with these state laws.

Email voting, while convenient, can be troublesome because it does not create as clear of a record. It can be challenging to clearly and fully describe the proposed Board action in an email, and even more challenging to get clear, affirmative responses from all Board members in response. Finally, any form of consent resolution (including email voting) should be used sparingly and with caution, since this form of Board action does not show that there was an inclusive discussion among Board members leading up to the vote, which can lead to Board members pushing through actions without full discussion and critique.

Assuming email voting is permitted by law in your state, you need to be careful and thorough to ensure that each Board member replies to the email with a clear statement of approval and that all replies are visible on the same page with the original proposed resolution. Lastly, all replies must be saved in the corporate records.

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