ACTION BY WRITTEN CONSENT

[Mark Apodaca, PRP]

I am working with the President on an issue.  He called for the members of the board to meet on video conference.  It was not a board meeting but just to update the board of a situation.  Video conferencing is used due to the use of American Sign Language.  The bylaws do not have a section on special meetings so therefore a special meeting is not allowed.  I am listing three sections but section 8 caught my eyes.  

 

ARTICLE VI: LAD BOARD

SECTION 1:      LAD BOARD

The voting members of the LAD Board of Directors (herein the “Board” or the “LAD Board”) shall consist of President, Vice President, Secretary, Treasurer, and three (3) Members at Large. The non-voting members of the LAD Board shall consist of a Louisiana Registry of Interpreters for the Deaf (LRID) Representative, Louisiana Acadiana DeafBlind (LADBC) Representative and all other members of the Advisory Board and Affiliate Organizations created pursuant to Article VIII, Section 1 hereof who are bonafide residents of Louisiana. Each representative from Louisiana Registry of Interpreters for the Deaf (LRID) and from Louisiana Acadiana DeafBlind (LADBC) and the members of the Advisory Board and Affiliate Organizations shall be elected or appointed by their respective organization to serve as non-voting on the LAD Board.

SECTION 6:      LAD BOARD MEETINGS

 The LAD Board shall meet a minimum of four (4) times a year. The President shall designate the city and place of each meeting with approval of a majority of the voting members of the LAD Board shall give no less than ten (10) days’ notice to each Board member of any Board Meeting. A quorum for meetings of the LAD Board shall consist of fifty-one percent (51%) of the voting LAD Board members.

 SECTION 8:      ACTION BY WRITTEN CONSENT

 Any action required or committed to be taken by the LAD Board of Directors may be taken without a meeting if all of the voting members of the Board of Directors consent to such action in writing.  Such action by written consent shall have the same force and effect at the unanimous vote of the Directors.  Notice of such action shall be provided to all non-voting members of the Board.

[Mark Apodaca, PRP]

By the way, they use text messages to make motions, second the motion, and vote.  Ratify at the next board meeting.

[Atul Kapur]

Do you have a question or is this just for information?

[Mark Apodaca, PRP]

In a text, the Vice President of the Louisiana Association of the Deaf asked if I could interpret Section 8.  I could not.  I have no idea what is meant by written consent.  Email?  Text? Morse Code?  Personally, I don't believe this should be a part of the bylaws or should even exist.  Regular board meetings, special board meetings are more appropriate.  The President called me this morning about it.  I told him that it would be best, as the first step, to find out when and  why was it added to the bylaws.  Maybe during that time it meant something.  This is not the first time I have seen something in the bylaws which puzzled me.  Do you share the same experience?

[Weldon Merritt]

I'm not sure how common it is n bylaws, but it's not particularly unusual in nonprofit association statutes. In my view, it can be useful for handling noncontroversial actions, especially if there may be a time constraint.

[Atul Kapur]

Building on Mr. Merritt's comment, you should check whether the law(s) that apply to NAD include this provision. If so, then it doesn't matter whether it's duplicated in the bylaw or not (other than any possible differences in wording), it applies to NAD.

I have seen this provision put to good use.

Please note that there is a difference between "if all of the voting members of the Board of Directors consent to such action in writing" and "unanimous consent" as used in RONR. The provisions of Section 8 mean that every voting member has to consent to such action in writing. Any "abstention" has the same effect as a Negative vote.

4 hours ago, Mark Apodaca said:

I have no idea what is meant by written consent.  Email?  Text? Morse Code?

If it's just a provision in the bylaw, then the organization needs to interpret what it means. If it is in the applicable law, then you should consult a lawyer. I have seen where email has been accepted as written consent by an association; no lawyer or judge reviewed this because there was no one to object to it--every voting member had submitted their explicit consent.

But, now we're back to first base and Who's there. 😀

[Richard Brown]

Agreeing with Mr. Merritt and Dr. Kapur, it is not that unusual for an organization’s bylaws to permit the board to take action by unanimous written consent in lieu of a meeting. In addition, many state corporation codes provide for doing so unless it is specifically prohibited in the bylaws.

[Shmuel Gerber]

8 hours ago, Mark Apodaca said:

I have no idea what is meant by written consent.  Email?  Text? Morse Code?

As stated in section 8, action by written consent refers to action for which consent has been obtained in writing. Do you literally not have *any idea* what it means to consent to something in writing? Are you not familiar with the word "writing"? It's a fairly common word.

I can understand that questions might arise as to whether a particular mode of electronic communication counts as writing, but let's not pretend that the entire concept is inscrutable.

Unlike email, Morse code is not a communication medium, but rather an alphabet suitable for encoding and decoding messages using long and short sounds. However, it is possible to write a message in Morse code using dots and dashes, so if a member gives consent to some action in a written form of Morse code, I would say he has given consent in writing but would be lucky if the secretary can interpret it. If he radioed a telegram over the wire without writing anything, then I would say he did not give written consent.

Obviously this is my own interpretation and not provided in RONR.

[Josh Martin]

20 hours ago, Mark Apodaca said:

In a text, the Vice President of the Louisiana Association of the Deaf asked if I could interpret Section 8.  I could not.  I have no idea what is meant by written consent.  Email?  Text? Morse Code?  Personally, I don't believe this should be a part of the bylaws or should even exist.  Regular board meetings, special board meetings are more appropriate.  The President called me this morning about it.  I told him that it would be best, as the first step, to find out when and  why was it added to the bylaws.  Maybe during that time it meant something.  This is not the first time I have seen something in the bylaws which puzzled me.  Do you share the same experience?

I would say that "written consent" means any form of communication reasonably interpreted to be in writing. I would think email and text messages are both certainly writing. I don't think anyone plans on approving something by Morse Code so I wouldn't worry about it.

If you want to remove it because you are opposed to it on the merits, that's a separate discussion, but I don't think it's all that unclear. Alternately, if you think that only one form of written communication (for instance, email) should be permitted for written consent, the rule could be amended to clarify that.

This really is not an unusual provision and is found in a great many organizations' bylaws and in various state laws.

Edited September 21, 2020 at 02:45 PM by Josh Martin

[Gary Novosielski]

..   ._  _.. ._. .  .

[Bruce Lages]

I think you meant  " ..  ._  _ _. ._. . ."

[Gary Novosielski]

RONR makes clear in 9:34 written communication includes "postal mail, e-mail, 'chat rooms,' or fax".

[Gary Novosielski]

10 minutes ago, Bruce Lages said:

I think you meant  " ..  ._  _ _. ._. . ."

Dangit.  😝  My brain said G but my fingers said D.

I would have done fine with a straight key.

Edited September 21, 2020 at 08:16 PM by Gary Novosielski

[Mark Apodaca, PRP]

I am sure you were aware that when I mentioned Morse code, I was joking.  It is extremely old technology.  Thanks all.

[Caryn Ann Harlos]

4 hours ago, Gary Novosielski said:

RONR makes clear in 9:34 written communication includes "postal mail, e-mail, 'chat rooms,' or fax".

Do people still use fax?

[Shmuel Gerber]

9 minutes ago, Caryn Ann Harlos said:

Do people still use fax?

Some people do. In fact, our NAP unit very recently had to submit incorporation papers by fax.

And several groceries in my neighborhood accept delivery orders by fax.

[Richard Brown]

1 hour ago, Caryn Ann Harlos said:

Do people still use fax?

Oh, you betcha! Some entities will accept  things only by fax, not via email. It seems somewhat prevalent in the medical field.

Edited September 22, 2020 at 02:03 AM by Richard Brown
Fixed a voice to text screwup. Changed “except” to “accept!

[Caryn Ann Harlos]

Interesting.  I work in a law office and nothing ever comes by fax any longer.

[Mark Apodaca, PRP]

Yes, where I work, we still use fax.  Some use fax software for their computers and send faxes instead of the fax machine.

[Gary Novosielski]

43 minutes ago, Caryn Ann Harlos said:

Do people still use fax?

Every doctor's office and hospital.

[Mark Apodaca, PRP]

Going back to this topic, after reading the section several times and reading what you shared, here are my thoughts:

1. The Louisiana Association of the Deaf's bylaws do not have a section covering special meetings of the board.  So with that said, they cannot have special meetings according to RONR.
2. Before a board member can make a motion via text, he needs to receive the board's "written" consent via text.  If all board members agree, the board member will make a motion, no second since board is made up of seven members, debate, and vote.  Again, when it comes to "written" consent, If one board member does not agree then the motion cannot be made.  Same with a member abstaining.  
3. If the motion passes, it will be ratified during the next regular board meeting.

Any thoughts?  There needs to be a system and procedures to make this effective.  I do know one organization has its members emailing, texting, and making a video simultaneously.  

Mark

[Weldon Merritt]

3 hours ago, Mark Apodaca said:

The Louisiana Association of the Deaf's bylaws do not have a section covering special meetings of the board.  So with that said, they cannot have special meetings according to RONR.

Yes, that is correct.

 

3 hours ago, Mark Apodaca said:

Before a board member can make a motion via text, he needs to receive the board's "written" consent via text.  If all board members agree, the board member will make a motion, no second since board is made up of seven members, debate, and vote.  Again, when it comes to "written" consent, If one board member does not agree then the motion cannot be made.  Same with a member abstaining.  

That's not quite the way it works. If the bylaws (or a statute) allow a decision to be made by the written consent of all members without a meeting, what typically happens is that the president notifies the board of a proposed action and requests their written consent. If they all give their written consent, the action is approved. if one or more of them do not give their written consent (either by explicitly denying consent or simply not responding), the action is not approved.'=

I suppose that technically, nothing would preclude a member other than the president initiating the request for consent, but it would be highly unusual. I think it would be more likely that the member would request the president to do so. But either way, if all of the members give their written consent, the action is approved. No need for a motion at that time.

3 hours ago, Mark Apodaca said:

If the motion passes, it will be ratified during the next regular board meeting.

As noted above, if the members all give their written consent, the action is approved, just as much as if a motion had been adopted at a meeting, so no need for ratification.

[AFS1970]

Interesting thread, especially as it applies to modern communications methods. I would however think that Written must be by physical writing. All other methods, be it fax, text, email, ect are the same, a way to take something written convert it to a transmission and decode it back to written again. Thus if one is considered written then it seems to me they all would. A text message is essentially a modern day version of Morse Code in that regard. 

This is very close to the various threads on video conferencing as a form of meeting. Technology moves faster than we do in recognizing such movement. 

As an aside, my condo association bylaws allow for telegram to be used as the method of notifying board members of meetings. I have often toyed with the idea that I should list that as my desired form of communications. To be fair, I am not even sure how one could send or receive a telegram nowadays. 

[Gary Novosielski]

On 9/24/2020 at 9:20 AM, AFS1970 said:

Interesting thread, especially as it applies to modern communications methods. I would however think that Written must be by physical writing. All other methods, be it fax, text, email, ect are the same, a way to take something written convert it to a transmission and decode it back to written again.  

You are free to think that, but the text of RONR does not agree. The fact that it gets decoded back to written means that is it written.