Can Our Nonprofit Organization’s Board Vote by Email?

By Eleanor Evans, Counsel, Hemenway & Barnes LLP

If your organization is a nonprofit corporation incorporated in Massachusetts, voting by email is not permitted unless the vote meets the requirements of a unanimous written consent. The board of directors may take an action without a meeting if ALL the board members (also called directors) consent to the action in writing and the written consents are filed with the records of the board meeting. This consent is known as a unanimous written consent. It is permitted unless your organization’s articles of organization or bylaws specifically prohibit it.

It is possible to circulate a vote on an action via email to all directors for them to consent to it in writing. However, for the vote to be valid, ALL the directors must return the consent AND vote in favor of the action. The action becomes effective on the date the last consent is returned. If any director fails to respond, votes against the action or abstains, the proposed action will not become effective.

If an action circulated for an email vote of the board does not receive unanimous written consent, the board may hold a meeting to consider and vote on the action. Unless your organization’s articles of organization or bylaws prohibit it, the board may meet remotely – by conference call or video – as long as everyone participating in the meeting can hear one another.

Generally, actions voted on at a board meeting at which a quorum is present require the approval of a majority of the directors present at the meeting. In some cases, however, approval by a higher number of directors may be required (or approval by a lower number of directors permitted). Therefore, it’s important to check your organization’s bylaws to determine the number of directors who must be present and vote in favor of the action, as well as the type and length of notice required for the meeting.

Note that proxy voting by directors is NOT permitted.

The rules described above also apply if your nonprofit is incorporated in Delaware or in any one of a number of other states. However, if your organization is incorporated in a state other than Massachusetts or Delaware, you should check the nonprofit corporation law of that state.

If your nonprofit is a trust rather than a corporation, the nonprofit corporation rules outlined above do not apply. Instead, the trust is governed by its trust instrument, which should be consulted to determine how many trustees must approve a particular action and how that approval must be documented.

If your nonprofit corporation’s board of directors has permitted proxy voting by directors or taken votes by email that were not unanimously approved, those votes – as well as subsequent actions taken based on those votes – could be challenged as invalid. (For example, if the board voted by email to elect officers and that vote
was not unanimous, the election of those officers could be challenged as invalid, as could all subsequent actions taken by those officers – such as their signing of contracts and checks.) The board should vote at a properly noticed and attended board meeting to ratify past actions that were voted on by proxies or by email without unanimous consent. Consulting with an attorney under these circumstances is recommended.