Actions without Meeting

[Guest Bill]

My question is regarding actions taken by a BOD without a meeting, specifically by email vote. Our state law states:

"Unless the articles or bylaws provide otherwise, action required or permitted by this chapter to be taken at a board of directors' meeting may be taken without a meeting if the action is taken by all members of the board. The action must be evidenced by one or more written consents describing the action taken, signed by each director, and included in the minutes filed with the corporate records reflecting the action taken."

Our documents provide for similar documentation stating that "Directors shall have the right to take any action inn the absence of a meeting which they could take at a meeting by obtaining the written approval of all Directors".

Question - Does the individual email approval of the action taken satisfy the "written consent or approval" requirement of the law or our documents - or is a separate document stating the action taken signed by each member of the BOD required?

 

[Joshua Katz]

This requires both interpreting bylaws (which only your organization can do) and interpreting state law (as well as determining whether or not it is applicable, which requires looking at it in context). For the latter, you'd need to consult an attorney. We can't provide much help here.

[Transpower]

Any electronic form of communication must be specified in the bylaws for it to be accepted as valid.

[Gary Novosielski]

Well, the closest RONR comes to answering this does say that e-mail counts as being in writing.  It answers the question directly when it comes to "notice":

Quote

 

When notice is required to be sent, unless a different standard is specified that requirement is met if written notice is sent to each member either:

a)  by postal mail to the member’s last known address; or
b)  by a form of electronic communication, such as e-mail or fax, by which the member has agreed to receive notice.

 

No further authorization is required in the bylaws for this notice requirement to be fulfilled, merely consent by the recipient.

So, it seems to me that a case could be made that if the Secretary¹ consents to receive the required "written approval" of the directors via e-mail, then it would satisfy the bylaws requirement.

__________
¹ Unfortunately, the bylaws appear not to specify to whom this approval must be sent, but I am presuming that upon approval, this action must be recorded in a manner equivalent to the minutes, and thus the Secretary would be the natural recipient.

[Richard Brown]

6 hours ago, Transpower said:

Any electronic form of communication must be specified in the bylaws for it to be accepted as valid.

Well, provided state law doesn't contain a provision mandating that electronic communications be an acceptable form of providing notice, etc. Most state laws make it optional, but some might make its acceptance mandatory or might contain an "opt out"  provision rather than an "opt in"  provision.

Edited to add:  Also, see this language on page 89 regarding electronic notifications when agreed to by a member:  "When notice is required to be sent, unless a different standard is specified that requirement is met if written notice is sent to each member either:
    a)    by postal mail to the member's last known address; or
    b)    by a form of electronic communication, such as e-mail or fax, by which the member has agreed to receive notice.

That provision in RONR is applicable unless the bylaws specifically disallow electronic communications.

Edited January 28, 2019 at 02:38 AM by Richard Brown
Added last two paragraphs

[Transpower]

RONR (11th ed.), p. 97, ll. 28-30:  "...an electronic meeting that is properly authorized in the bylaws is treated as though it were a meeting at which all the members who are participating are actually present."  (Italics added.)

[Guest JPE]

How would you document the action taken outside of a meeting in the next board meeting agenda/minutes?

[Atul Kapur]

On 1/27/2019 at 11:55 AM, Guest Bill said:

The action must be evidenced by one or more written consents describing the action taken, signed by each director, and included in the minutes filed with the corporate records reflecting the action taken."

I am not a lawyer but this quote from the OP's state law would seem to explain how you do that. Your law may vary but I hope it would give some direction.