e-mail voting

[Newbie]

I've tried to read as many of the posts on this subject that I could find here.

Our state statute identifies RONR as our parliamentary authority for meetings.

Our state statute has only 1 mention of e-mail (or email): " VI. The board of directors may approve the minutes through the use of electronic means such as email, video conferencing, fax machine, or PDF files transmitted over the Internet."

Our Declaration and Bylaws do not mention email, but references the option to send out ballots electronically.

We have members who wish to make motions and vote via e-mail. One member suggested that they would provide a reference that authorizes us as a board to conduct business by email throughout the month, as long as we affirm all of the actions at the next official Board meeting by having someone make a motion to accept the actions taken by the Board via email. 

First question, is that permissible and where would I find that? I'm not sure where this member has found such a reference, but I suspect it's probably not valid under RONR.

Second question. If people push hard enough on this could/should we include e-mail voting as a special rule of order? If so, how would we structure that?

I'm not keen on e-mail voting, but for some small, incidental matters, perhaps it could be workable? I don't want it to evolve into special meeting subject e-mail voting.

Thanx.

[Joshua Katz]

26 minutes ago, Newbie said:

First question, is that permissible and where would I find that? I'm not sure where this member has found such a reference, but I suspect it's probably not valid under RONR.

 

Why not wait for the reference and then see? Remember that applicable procedural statutes (but only applicable statutes, the determination of which is beyond the scope of this forum) take precedence over the rest of your governing documents. The statute you reference refers only to minutes. Tell him to give you his reference, then get back to us and we'll tell you what we make of it.

27 minutes ago, Newbie said:

 Second question. If people push hard enough on this could/should we include e-mail voting as a special rule of order? If so, how would we structure that?

 

Email voting would need to be authorized in the bylaws (assuming it is not authorized by something else), but the procedure by which it is carried out could be in the special rules of order. 

[Richard Brown]

I have not yet read anything that you have posted that leads me to believe that email voting is permissible in this organization. You have provided snippets and brief paraphrases, but not enough for me to say email voting is permissible.

However, unless it is prohibited by state  law, you can probably adopt a bylaw Amendment which permits it.

[Joshua Katz]

55 minutes ago, Newbie said:

Our Declaration and Bylaws do not mention email, but references the option to send out ballots electronically.

 

Also, can we see this language please?

[Newbie]

9 hours ago, Joshua Katz said:

Also, can we see this language please?

Actually, the phrases do not appear in our Declaration or Bylaws, only our state statute.

356-B:37 Meetings.

VI. The secretary or other designee duly authorized by the board of directors shall take minutes of all meetings held in accordance with this section and RSA 356-B:37-c. The board of directors shall make copies of the minutes of all meetings available to the unit owners within 60 days of the meeting or 15 days of the date such minutes are approved by the board, whichever occurs first. The association may opt to provide the minutes electronically or publish them on the association website, in which case the owners shall be informed of the web address. An electronic or paper copy of all meeting minutes shall be available to the unit owners for at least 3 years after the date of the meeting. The board shall respond to a unit owner's written request for the minutes within 15 days of receipt of the request.

356-B:37-a Notice to Unit Owners. – An association shall deliver any notice required to be given by the association under this chapter to any mailing or electronic mail address a unit owner designates. If the unit owner does not designate an address, the association shall deliver notices by hand delivery, United States mail postage paid, or commercially reasonable delivery service to the mailing address of each unit.

    356-B:37-e Disclosure of Financial Information and Meeting Minutes to Unit Owners.

V. The board of directors shall make copies of the minutes of all meetings available to the unit owners within 60 days of the meeting or 15 days of the date such minutes are approved by the board, whichever occurs first. The association may opt to provide the minutes electronically or publish them on the association website, in which case the owners shall be informed of the website address. A unit owner who submits a written request for access to the association's website shall be granted access within 15 days of the request, at no additional charge to the owner.

VI. The board of directors may approve the minutes through the use of electronic means such as email, video conferencing, fax machine, or PDF files transmitted over the Internet.

=======

Since our governing documents are in either Word or PDF format, I can search for specific words. So I search for words like "email", "e-mail", "electronic" to see where they appear. It appears that our board can notify owners of meetings and send minutes via e-mail. Our approved minutes are published on a website. And the one thing the board can do by e-mail is to approve minutes which is very specific.

So simply creating a special rule of order would not be sufficient? We would still require an amendment to the bylaws? If the bylaws were amended, would there even be a need to create a special rule of order? I guess all this may depend upon the wording that was added to the bylaws.

 

[Newbie]

10 hours ago, Joshua Katz said:

Why not wait for the reference and then see? Remember that applicable procedural statutes (but only applicable statutes, the determination of which is beyond the scope of this forum) take precedence over the rest of your governing documents. The statute you reference refers only to minutes. Tell him to give you his reference, then get back to us and we'll tell you what we make of it.

Email voting would need to be authorized in the bylaws (assuming it is not authorized by something else), but the procedure by which it is carried out could be in the special rules of order. 

We have some board members who prefer springing surprises on the group. Only a few members will have the information and then will try to railroad it through because others don't know better or how to suppress it.

[Joshua Katz]

3 hours ago, Newbie said:

Since our governing documents are in either Word or PDF format, I can search for specific words. So I search for words like "email", "e-mail", "electronic" to see where they appear. It appears that our board can notify owners of meetings and send minutes via e-mail. Our approved minutes are published on a website. And the one thing the board can do by e-mail is to approve minutes which is very specific.

 

I'm sure you're right, but cntrl-f does not always work on pdfs. It only works on pdf files with an optical layer.

3 hours ago, Newbie said:

So simply creating a special rule of order would not be sufficient?

Assuming it is not already permitted, then no, a special rule of order cannot permit email voting. Email voting is directly contrary to the RONR's definition of a deliberative assembly and requires authorization in the bylaws. Once it is authorized in the bylaws, the special rules of order can lay out the specifics (and this is probably better than spelling it all out in the bylaws, since inevitably problems will develop you wish to address with relative ease).

 

3 hours ago, Newbie said:

If the bylaws were amended, would there even be a need to create a special rule of order? I guess all this may depend upon the wording that was added to the bylaws.

You are correct. You could put in the bylaws what email list will be used (but if you change servers or email companies, you'll need to amend your bylaws), how long ballots will be open, whether they will close when all have voted, whether members can change their votes, whether non-members can see a record of the votes, etc. etc. etc. But it's best to put in the bylaws something allowing the board to develop methods for email voting and to use same, and then spell out the rest elsewhere, where it can be easily amended. Organizations often learn how to use email voting, and what rules are best for them, by trial and error. (My personal opinion is that email voting is a mistake, and is a false effort to modernize - email has already been left behind, and now we have many ways to communicate in real-time online.) 

 

3 hours ago, Newbie said:

We have some board members who prefer springing surprises on the group. Only a few members will have the information and then will try to railroad it through because others don't know better or how to suppress it.

Well, we can't evaluate a reference we aren't given. But in what context can he do this springing? If at a meeting, you'll have time to react. If by email, you can research before the next real meeting, then come there and argue why the email vote taken was invalid.

[Newbie]

On 1/29/2019 at 12:38 PM, Joshua Katz said:

Well, we can't evaluate a reference we aren't given. But in what context can he do this springing? If at a meeting, you'll have time to react. If by email, you can research before the next real meeting, then come there and argue why the email vote taken was invalid.

That is understood. The member declined/ignored my request to share the "magic solution". Guess I'll find out next Thursday at our next board meeting.

And our president has now taken to editing our draft minutes and sending them out to the board for "approval". I have a few problems with this. First, I think it's an underhanded way of getting board members to vote via email. Second, inputs from others are not included which basically is a form of censoring. Third, why is the president sticking his thumb into the secretary's duties? (OK, I admit I have my theories about the third point, and it's more rhetorical in nature.) But, is there a legal way to keep meddling-prez out of the minutes-editing activity?

Our issues with this board of 7 is that for anything that might require a 2/3 vote, we won't have the numbers. Prez has 2 puppets in his pocket. I am understanding the frustrations I've seen in other threads about rogue presidents or a lack of empathy on the board, or apathy of the board. I suspect like many other boards, we need members to grow a spine and not put up with some of these transgressions.

[Newbie]

Earlier in this thread, I noted this passage in our state statute:

VI. The board of directors may approve the minutes through the use of electronic means such as email, video conferencing, fax machine, or PDF files transmitted over the Internet.

Technically, then, this would be a legal process for the approval of minutes. While still a cluster, because of several iterations of the same document, I will have to yield on this point.

[Richard Brown]

11 minutes ago, Newbie said:

But, is there a legal way to keep meddling-prez out of the minutes-editing activity?

Not pursuant to the rules in RONR. Everyone is free to offer unsolicited suggestions to the Secretary.  However, I suppose you could amend the bylaws or adopt a special rule of order that prohibits anyone (or just the president) from suggesting changes to the draft minutes prior to the assembly taking up the reading and approval of the minutes.  I  question the wisdom of such a rule and in fact think it would be unwise, but you asked if it is possible. 

[Richard Brown]

4 minutes ago, Newbie said:

Earlier in this thread, I noted this passage in our state statute:

VI. The board of directors may approve the minutes through the use of electronic means such as email, video conferencing, fax machine, or PDF files transmitted over the Internet.

Technically, then, this would be a legal process for the approval of minutes. While still a cluster, because of several iterations of the same document, I will have to yield on this point.

I  would check the reading of that statute and other related statutes re board authority carefully.  Such statutes usually contain language at some point in the section on non profit corporations which says "Unless otherwise provided in the bylaws" or "unless prohibited in the bylaws" or "unless permitted in the bylaws".  Look carefully for such limiting language.  Such language is sometimes contained in the particular provision dealing with that issue and it is sometimes placed early on in the section on non profit (or for profit) corporations and will say something to the effect that "Unless specifically provided otherwise in the bylaws or Articles of Incorporation, a corporation (or board) under this title may:"    And then follows a long list, sometimes each a different code section, of things the corporation or the board may do.... but they are all subject to that earlier clause which says "unless provided otherwise in the bylaws". 

Don't take a particular provision in isolation.  Several provisions often have to be read together.

[Newbie]

3 minutes ago, Richard Brown said:

Not pursuant to the rules in RONR. Everyone is free to offer unsolicited suggestions to the Secretary.  However, I suppose you could amend the bylaws or adopt a special rule of order that prohibits anyone (or just the president) from suggesting changes to the draft minutes prior to the assembly taking up the reading and approval of the minutes.  I  question the wisdom of such a rule and in fact think it would be unwise, but you asked if it is possible. 

Yes, we are all free to offer our inputs to the secretary. It's more an issue of the president (on his own) deciding which inputs to accept and which to ignore. I wouldn't want to curtail board members rights to suggest additions/deletions/edits to the draft copy. The Prez then makes edits to the draft minutes, asks for approval, then sends out a note like this:

"M, would you be so kind as to prep the enclosed January minutes for next Thursday's meeting? Any questions, please give me a shout. "

At this point, I don't know if Mr. Prez believes these minutes are final approved version or are still draft minutes. I know my inputs are not all included.

[Richard Brown]

2 minutes ago, Newbie said:

Yes, we are all free to offer our inputs to the secretary. It's more an issue of the president (on his own) deciding which inputs to accept and which to ignore. I wouldn't want to curtail board members rights to suggest additions/deletions/edits to the draft copy. The Prez then makes edits to the draft minutes, asks for approval, then sends out a note like this:

Well, although the president can make suggestions just like every other member, I don't think he should actually be making edits to the draft minutes.  The secretary's draft is HER (or his) draft and nobody has any right or business making changes to it.  He can, however, submit his own version if he wants to.  Such a submission should not be treated any differently than any suggested change to the draft minutes.

[Newbie]

21 minutes ago, Richard Brown said:

I  would check the reading of that statute and other related statutes re board authority carefully.  Such statutes usually contain language at some point in the section on non profit corporations which says "Unless otherwise provided in the bylaws" or "unless prohibited in the bylaws" or "unless permitted in the bylaws".  Look carefully for such limiting language.  Such language is sometimes contained in the particular provision dealing with that issue and it is sometimes placed early on in the section on non profit (or for profit) corporations and will say something to the effect that "Unless specifically provided otherwise in the bylaws or Articles of Incorporation, a corporation (or board) under this title may:"    And then follows a long list, sometimes each a different code section, of things the corporation or the board may do.... but they are all subject to that earlier clause which says "unless provided otherwise in the bylaws". 

Don't take a particular provision in isolation.  Several provisions often have to be read together.

That's a good suggestion. I did go back and see if there were any provisional statements that could link to the statement about approving minutes by email. I could not find any. Our Declaration and Bylaws appear to be silent on the email subject.

[Newbie]

16 minutes ago, Richard Brown said:

Well, although the president can make suggestions just like every other member, I don't think he should actually be making edits to the draft minutes.  The secretary's draft is HER (or his) draft and nobody has any right or business making changes to it.  He can, however, submit his own version if he wants to.  Such a submission should not be treated any differently than any suggested change to the draft minutes.

The information he's sending out is not in the form of individual suggestions to passages or paragraphs. He's made changes to a PDF document. So he's either doing this on his own or the secretary is complicit in helping him do it. I don't know if he has edit rights to the documents which are kept by a management firm that we employ. Our secretary serves as a property manager of that firm and obviously as our secretary.

[Joshua Katz]

I think what you have on the minutes is a clarity issue. Your statute provides (so far as you've told us, with the possibilities noted by Mr. Brown) that the minutes MAY be adopted by email or a few other methods. But that doesn't mean you must do so, which in turn means your president can't force you to do so. You also have the issue that the statute allows it, but doesn't specify how. At the least, it seems to me that your organization should adopt rules for this purpose. For instance, what happens if the vote doesn't carry? How long do members have to cast a vote? Can members change their votes ? And, most pertinently - what happens if two proposed minutes are distributed? 

However, I think the statute is ambiguous, and you should, if possible, ask an attorney what it means. I'm not sure what it means in the case where the organization has made no decision, but a majority of the board wishes to approve the minutes. Maybe it means they can (you seem to be assuming that, and it's not crazy) or maybe it doesn't. What if it's only a majority of those replying who wish to do so? It certainly doesn't mean the president gets to decide you're doing it by email, though. 

[Newbie]

Here is our president's reply on why he's editing minutes:

"the January minutes are not "my" interpretation of the minutes, but are in fact a culmination of the boards inputs. These minutes have been agreed upon by the majority of the board and as such will be presented for motion to accept at the next board meeting . Once the motion and second are made, they will be open to discussion by any / all seated board members. Any additions, deletions or edits will be decided by the board."

And this was my last reply to prez and secretary:

"The one thing that the board does not get to decide is if a motion that was made is included or not included in the minutes. If a main motion is made, it must be included in the minutes. Since it was not included, it is out of order to request approval on those minutes.

 

"So once again, I will ask the question that (president) and (secretary) continue to ignore:

 

"Are you willfully refusing to enter my motion into the minutes?"

 

While the "culmination" that he speaks of involves inputs by 2 other board members of a small matter as well as his own personal edits, a resolution that I made was not included. The resolution has been submitted to the board and secretary at least 3 times now. Seems it keeps getting "lost". Thus my question to them.

[Joshua Katz]

As I've said to many organizations that ask, parliamentary rules only help organizations willing to follow them. If you have officers not willing to follow them, that's okay, if you have members willing to enforce them. If you have neither, well, you have a hard time. 

But I still think you need an actual process for approving minutes outside meetings, and an understanding of what exactly your statute requires and does not require.

[Nathan Zook]

Our county party executive board uses email voting for urgent matters, as permitted in our bylaws.  I cannot say that I am happy with this.  We certainly have urgent matters come up from time to time, but I've seen unanimous votes flip because someone brings up a point after several hours.  Fortunately, even when divided, the board has not been contentious.  Furthermore, I agree (strongly) with the idea stated above that there are many details that need to be specified regarding such proceedings, such as:

• What calls a vote?
• Until when must voting remain open?
• Is there a minimum number of responses that are required for a vote to be valid?
• What are the provisions for changing votes?

Note that all answers to the above questions must take into account that email is NOT real-time.  A delay of minutes between when email is sent and received is normal.

As for the issue at hand, I wonder that the President has the authority to edit the draft minutes at all?  It is the secretary's duty to record the minutes, and it is the secretary's draft which is to be presented for consideration.  Absent something in the bylaws to the contrary, anything else is a violation of your parliamentary authority, which would appear to put the President in a situation of legal jeopardy. (I am not a lawyer, and this is not legal advice.)  I would think that an attorney might make short work of this situation.

 

[Newbie]

On 1/29/2019 at 12:38 PM, Joshua Katz said:

Well, we can't evaluate a reference we aren't given. But in what context can he do this springing? If at a meeting, you'll have time to react. If by email, you can research before the next real meeting, then come there and argue why the email vote taken was invalid.

OK, I have the "reference" our board member is citing. She sent it out in anticipation of our meeting next Thursday.

Here is the reference, although she only sent out the section that I highlighted.

Board Meetings
There is no language in the Condominium Act that requires a set period of time for Board
meetings, such as twenty-one for Annual Meetings and seven for Special Meetings.
Check your documents, usually in the Bylaws for how much time must be given for
Board meetings. And, frequently Boards can now conduct business through email, Skype,
teleconferences, etc. But to ensure the actions are valid and enforceable, it is best to affirm all of
the actions at the next official Board meeting by having someone make a motion to accept all of
the actions taken by the Board via email, Skype, etc. since the last meeting of the Board. Such a
notation should then go in the minutes of the Board meeting.

The reference comes from a NH lawyer's web site. He has several pages related to condo law, and touts himself as "a full-service condominium law firm". He has 3 separate sections that talk to our state statute with the intent of making it a bit clearer for lay persons unfamiliar with some of the language used. In general, I think he did a decent job. He often mentions to "check your documents/bylaws" for various subjects. And when he quotes directly from the statute, he provides the proper reference.

While this may provide some information to the reader, I do not believe it can be used as a citation for our HOA to allow for email voting. With the 1 exception I noted previously regarding the approval of meeting minutes, nothing else in our state statute, declaration, or bylaws specifically allows for email voting. I think she believes that because it was written by a lawyer that we would be able to adopt it ourselves. I believe the only way we can do this is via a bylaw amendment.

[Gary Novosielski]

If you have adopted RONR as your parliamentary authority, the rules in RONR apply, and not those of some lawyer's web site. 

It's true that "frequently Boards can now conduct business" via e-mail, but only if there are rules authorizing it.  And the suggestion that all actions be ratified at the next meeting only raises questions about the validity of such actions in the first place.

While you might get insight on how statutes and regulations apply to your organization, lawyers are not the most reliable source of parliamentary advice, and it would not surprise me if the web site had a disclaimer that the information found there does not constitute legal advice.

 

[Joshua Katz]

I don't see how this quote from a lawyer's website, who was not addressing your particular group, is illuminating about your situation. 

[Newbie]

On 2/17/2019 at 12:23 PM, Joshua Katz said:

I don't see how this quote from a lawyer's website, who was not addressing your particular group, is illuminating about your situation. 

Nor do I. It was the panacea we were waiting for.  🙄