Q&A #3 – Is my Board allowed to have virtual meetings?

Question: The Board of Directors of my nonprofit cannot meet in person right now due to the coronavirus shutdowns, so we have been looking into setting up a virtual meeting platform for our upcoming annual meeting. We have always had Board meetings in person, so we’ve never thought about whether virtual meetings are allowed. Our Bylaws do not address this subject at all. Are we allowed to have a virtual Board meeting?

Answer: You didn’t mention the state in which your organization is incorporated, but it is very likely that virtual Board meetings of this type are allowed based on your description of the Bylaws.

In D.C., for example, the rule is that unless the organization’s Articles of Incorporation or Bylaws provide otherwise, any or all Board members are permitted to attend a meeting using “any means of communication by which all directors participating may simultaneously hear each other during the meeting” (emphasis added). D.C. Code § 29-406.20(b). This includes meetings held by conference call, Zoom, GoToMeeting, or similar technology. This is also the rule in many other jurisdictions. Thus, unless your Bylaws have specific restrictions, “virtual” attendance at a Board meeting counts as attendance in person, and the meeting is treated the same as any other Board meeting for all purposes (quorum, notice, voting, etc.).

Since your Bylaws are silent on this subject and do not have a restriction against virtual meetings, this type of meeting would be permitted for D.C. nonprofit corporations. You should check the state nonprofit corporation law where the organization is incorporated to be sure.

But not every type of “virtual” Board meeting is treated this way. Meeting by email or text messaging platforms (e.g. WhatsApp and Slack) does not count as a “meeting” in most jurisdictions because Board members cannot hear each other and converse in real time. Of course, it is fine for Boards to have informal discussions over email and text message. However, in D.C. and many other jurisdictions, the Board cannot take an official action outside of a meeting unless there is a written consent describing the action that is signed by each and every Board member. This particular rule varies by state (some do not require unanimous consent), so check your state nonprofit corporation law before holding a Board vote by email, text, or written correspondence.

And be sure to communicate call-in instructions, protocols, and other processes to all Board members ahead of time so there will be no misunderstandings or compliance issues.

If you have a question you would like to submit to SE4N, send it to us using the contact form and we will consider answering it in a future post. Please do not send confidential information.