Can Your Board Vote via E-mail?

Our clients often ask us if it is permissible for boards to vote on association business via e-mail. We have even heard of association boards that do not meet in person at all, but conduct all business via e-mail. Although doing business this way may seem harmless, it may actually be a breach of a director's duty of care to vote on association business via e-mail.

The Washington Nonprofit Corporation Act allows association members to vote by electronic transmission (RCW 24.03.085) if voting in that manner is authorized by the association's bylaws. So if your association allows owners to vote via e-mail, so long as that is authorized by the bylaws, those votes are valid.

Board meetings, however, must be conducted in real time. RCW 24.03.120 states: "Except as may be otherwise restricted by the articles of incorporation or bylaws, members of the board of directors ... may participate in a meeting ... by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting."

The law requires board meetings to be held in real time (whether via teleconference or in person) because real-time meetings provide the board with an opportunity for healthy discussion and debate of the issues at hand. While e-mail is a forum that allows multiple board members to weigh in with their opinion on a matter, it does not allow the members of the board to participate in the type of back-and-forth that a true discussion requires.

There is one exception to this general rule: directors may take action without a meeting so long as there is a unanimous consent in the form of a record, such as a unanimous email vote. (RCW 24.03.465) Board decisions that are made unanimously via e-mail should be ratified at the next Board meeting so that the unanimity of the decision is reflected in the minutes. E-mail votes should be limited to issues that have already been discussed at a board meeting or that are time-sensitive and require immediate action by the board.

So, here's your bottom line: don't vote by e-mail. If you do, do so only when you must, and only if the decision of the board is truly unanimous. All e-mail decisions should be ratified at the very next real-time board meeting.

If you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!