enacting a resolution of the board outside of a meeting

[Al Dunbar]

we are currently reviewing a set of draft bylaws for our organization (a condominium corporation), and one of the board members submitted this suggestion for our consideration informally by email:

"I would like to include enacting a resolution via e-mail when it is endorsed by a majority of the board"

This was in response to the suggestion in a draft bylaw prepared by our lawyer indicating that written resolutions of the board need unanimity to pass. I had understood that unanimity was a reasonable requirement to avoid problems should a decision be taken without the participation of any member of the board, who might otherwise object after the fact. Would such a suggestion as this, and via e-mail, be in violation of some principle of  RONR?

[Joshua Katz]

On 12/5/2023 at 2:00 AM, Al Dunbar said:

Would such a suggestion as this, and via e-mail, be in violation of some principle of  RONR?

Well, yes, but that doesn't matter. Your bylaws "outrank" RONR, so they can deviate in any way you'd like. 

However, if your lawyer included this in your bylaws, and since the organization is a condo corporations, another question is whether such a provision would conflict with applicable law, which outranks your bylaws.

[Al Dunbar]

thanks for the response, Joshua. I understand that bylaws outrank RONR. But would still like to know specifically what is in RONR that we would be overriding with this change. knowing this might cause the person suggesting this to reconsider if, for example, it is clear from RONR what might result that might be a problem for us.

In RONR rev 11 it states on page 487 "The personal approval of a proposed action obtained separately by telephone, by individual interviews, OR IN WRITING, even from every member of the board, is not the approval, of the board, since the members lacked the opportunity to mutually debate and decide the matter a a deliberative body".

As an aside, we met today to continue our bylaw review and discussed this point. It turns out that the person who suggested this was OK with the unanimity requirement, and was mainly concerned with being able to vote by email rather than having to pass a written resolution around for signatures to all board members.

one solution would be to email everyone a copy of the written resolution which they could sign and indicate their vote, then scan it and email it back. The problem will be that those away on travel may not have access to the equipment needed to scan a signed copy, let alone print it. So the question is, how could we do this using only email?

I appreciate that RONR is unlikely to have the answer to that question, but I ask it in the hope of perhaps getting some helpful advice. I will also check the relevant legislation to see if it speaks to this.

Edited December 5, 2023 at 06:59 PM by Al Dunbar

[Joshua Katz]

On 12/5/2023 at 1:58 PM, Al Dunbar said:

thanks for the response, Joshua. I understand that bylaws outrank RONR. But would still like to know specifically what is in RONR that we would be overriding with this change. knowing this might cause the person suggesting this to reconsider if, for example, it is clear from RONR what might result that might be a problem for us.

 

I think it is clear that RONR advises against voting by email or mail, whether unanimity is required or not. What it says on the subject is that it's not recommended, and if an organization desires to do it, it needs to come up with its own rules for how it works. As far as RONR is concerned, decisions happen at meetings, where things can be discussed, not asynchronous voting.

The exception, not exactly relevant here but nonethless maybe informative, is committees. A committee may recommend an action without a meeting if the entire committee agrees to that recommendation. But that's likely because it's not an action, just a recommendation, and will still be debated by the parent assembly.

On 12/5/2023 at 1:58 PM, Al Dunbar said:

As an aside, we met today to continue our bylaw review and discussed this point. It turns out that the person who suggested this was OK with the unanimity requirement, and was mainly concerned with being able to vote by email rather than having to pass a written resolution around for signatures to all board members.

To be clear, in the case of a board, RONR does not in any way suggest or implement a unanimity requirement. But again, this may all be for naught - there may well be a legal reason (and likely is) to require unanimity. And there may well be a legal reason to permit asynchronous voting in the first place. I would suggest asking your attorney why it's written that way. (You shouldn't take down a fence until you know why it's there.)

On 12/5/2023 at 1:58 PM, Al Dunbar said:

one solution would be to email everyone a copy of the written resolution which they could sign and indicate their vote, then scan it and email it back. The problem will be that those away on travel may not have access to the equipment needed to scan a signed copy, let alone print it. So the question is, how could we do this using only email?

I don't see what this is a solution to. If you're worried that RONR says "in writing," note that it's talking about what is not an approval of the board. It's not a limiting list of means. And I think most of us here are of the opinion that email is "in writing." In my opinion, the bylaws should either permit voting by email or not.

 

[Josh Martin]

On 12/5/2023 at 1:00 AM, Al Dunbar said:

Would such a suggestion as this, and via e-mail, be in violation of some principle of  RONR?

Yes.

But your bylaws take precedence over RONR.

On 12/5/2023 at 12:58 PM, Al Dunbar said:

But would still like to know specifically what is in RONR that we would be overriding with this change.

"Therefore, a group that attempts to conduct the deliberative process in writing (such as by postal mail, e-mail, “chat rooms,” or fax)—which is not recommended—does not constitute a deliberative assembly. Any such effort may achieve a consultative character, but it is foreign to the deliberative process as understood under parliamentary law." RONR (12th ed.) 9:34

"A group that attempts to conduct the deliberative process in writing—such as by postal mail, electronic mail (e-mail), or facsimile transmission (fax)—does not constitute a deliberative assembly. When making decisions by such means, many situations unprecedented in parliamentary law will arise, and many of its rules and customs will not be applicable (see also 9:30–36)." RONR (12th ed.) 1:1n1

[Richard Brown]

I would caution against a simple statement in the bylaws that authorizes email voting.   If you are going to authorize It, you should adopt rules prescribing the process at the same time.  Unless you have some experience with it, you have no idea of the kinds of issues that arise with email voting/  Some examples are:  Can one member submit a motion to be voted on by email or must a motion be co-sponsored by several members?  How many?   Can an email motion be amended?  How?  by whom?   Exactly what will the process be?  Will there be "discussion"?  How and how much?  How long will the vote be kept open?  Can a member change his vote after voting but prior to the deadline for submitting votes? 

And more:  What will the vote threshold be?  How many members must vote in order for the outcome to be considered valid?  What if less than a majority of the members vote?  How will blank ballots be treated?  These are some of the reasons RONR strongly advises against voting by mail and email. 

Edited December 5, 2023 at 08:42 PM by Richard Brown
Added last paragraph

[Joshua Katz]

On 12/5/2023 at 3:39 PM, Richard Brown said:

Unless you have some experience with it, you have no idea of the kinds of issues that arise with email voting/

While I agree that rules about how it works should be adopted, preferably at the same time, I think the above statement argues against putting them in the bylaws. They should be easy to change as the organization learns the problems that arise.

[Richard Brown]

On 12/5/2023 at 2:46 PM, Joshua Katz said:

While I agree that rules about how it works should be adopted, preferably at the same time, I think the above statement argues against putting them in the bylaws. They should be easy to change as the organization learns the problems that arise.

I agree.  The AUTHORIZATION for email voting should be in the bylaws, but the rules and procedures for email voting should ideally be in special rules of order.  I did not intend to suggest that those rules should be in the bylaws.

[Gary Novosielski]

On 12/5/2023 at 1:58 PM, Al Dunbar said:

thanks for the response, Joshua. I understand that bylaws outrank RONR. But would still like to know specifically what is in RONR that we would be overriding with this change. knowing this might cause the person suggesting this to reconsider if, for example, it is clear from RONR what might result that might be a problem for us.

In RONR rev 11 it states on page 487 "The personal approval of a proposed action obtained separately by telephone, by individual interviews, OR IN WRITING, even from every member of the board, is not the approval, of the board, since the members lacked the opportunity to mutually debate and decide the matter a a deliberative body".

As an aside, we met today to continue our bylaw review and discussed this point. It turns out that the person who suggested this was OK with the unanimity requirement, and was mainly concerned with being able to vote by email rather than having to pass a written resolution around for signatures to all board members.

one solution would be to email everyone a copy of the written resolution which they could sign and indicate their vote, then scan it and email it back. The problem will be that those away on travel may not have access to the equipment needed to scan a signed copy, let alone print it. So the question is, how could we do this using only email?

I appreciate that RONR is unlikely to have the answer to that question, but I ask it in the hope of perhaps getting some helpful advice. I will also check the relevant legislation to see if it speaks to this.

RONR considers emails to be a form of writing, as long as each recipient has consented to receive information in that manner.  So the citation you gave from the 11th edition is the provision that you are seeking to override. 

And that is the rationale for requiring unanimity in situations where there has been no opportunity for debate, yes a decision outside of a meeting is being authorized in the bylaws.  It may well be that the lawyer included that provision because it is a requirement in the state regulations that apply to organizations such as yours.  If so, it supersedes your bylaws.

On 12/5/2023 at 4:40 PM, Richard Brown said:

I agree.  The AUTHORIZATION for email voting should be in the bylaws, but the rules and procedures for email voting should ideally be in special rules of order.  I did not intend to suggest that those rules should be in the bylaws.

Would those "rules and procedures" include the requirement for a unanimous vote, or whatever threshold is permissible and desired, or should that be in the bylaws, do you think?

[Richard Brown]

On 12/5/2023 at 3:59 PM, Gary Novosielski said:

Would those "rules and procedures" include the requirement for a unanimous vote, or whatever threshold is permissible and desired, or should that be in the bylaws, do you think?

I think that all of those provisions could be (and probably should be) in special rules of order unless there are conflicting rules in the bylaws.   An example would be (an unwise) provision in the bylaws that "all motions shall be decided by majority vote".    I don't think a special rule of order requiring a higher vote threshold for email motions would override that bylaw provision.