Hat tip to the Non-Profit Law Blog for providing a link to a piece on the Charity Lawyer blog about board votes by unanimous written consent.
An organization upon whose board I sit was recently revising its bylaws and the subject of voting on courses of action between meetings arose. We were especially interested in the legality of voting by email.
I can’t imagine we are the only ones having this conversation and fortunately, Ellis M. Carter at Charity Lawyer provides some answers.
“Unlike directors voting at a meeting which may require only a majority of the directors to approve any board action, most states that permit action by written consent require unanimous approval. Once an action by written consent is signed by all of the directors, the written consent resolution will have the same effect as a unanimous vote of the Board.
In such cases, a consent resolution will be sent to each individual director by mail, email or fax for his or her signature. To streamline the signature gathering process, the written consent document can permit counterpart signatures. This means that each director can sign the signature page of his or her copy and the signed signature pages, when taken together, are considered a validly executed document.
[…]
Generally, the action is considered to be taken on the date the last director signs the consent. For recordkeeping purposes, the signed consents must be kept by the secretary in the corporate minute book. Additionally, the resolution should be entered into the minutes of the next board meeting and made part of the official record of the corporation.”
In respect to emails, in order to remove any question of legality or whether an emailed response may have been made by an unauthorized person who gained access to an unattended computer, it is best to use a password protected electronic signature such as is available in Adobe documents. If that is too difficult, Carter suggests just printing the email, physically signing it and send it back by fax, regular mail or a scanned attachment to an email.