Voting by Email – A Risky Proposition For Non-Profits

Email can save us from meetings, round robin telephone calls, faxes and conference calls. It’s especially time saving when we want to avoid the traditional meeting for something that seems so simple or mundane. We avoid getting in the car driving to a meeting just to say “I move that we approve the carpet cleaning contract.”

That’s silly, when you could just send out an e-mail and ask for everyone’s vote. It might read: “Is everyone OK with Bob’s carpet cleaning bid? We can get a really good deal if we sign with him today. Let me know ASAP.” You get a quick response and business is accomplished right from your desk, or your smartphone.

There’s just one problem. It’s illegal. No, I don’t mean you’ll get arrested. I mean that voting by email isn’t enforceable. Let’s say you are the President (or committee chair) of a local charity, chamber or foundation, and you send out that carpet cleaning email. A majority of your board members approve without comment. You sign the contract. Your regular meeting comes up the next week, and a couple of the members (who were on vacation when the email went out) arrive with information about Bob the carpet cleaner. While he’s inexpensive, he’s also a convicted felon, and he’s been known to say some pretty unflattering things about your association. More importantly, a board member’s uncle is in the business and made a major contribution last year. Let’s give the contract to uncle Vinnie, they say; and before you know it, Vinnie is hired. But you already signed the contract in reliance on that email.

What you now discover is that voting by email is not enforceable, that is, it doesn’t count. Result: you are personally on the hook for that contract you signed. Missouri statutes simply don’t permit a non-profit board or committee to vote by email. People think I’m crazy when I tell them this. But the reality is that non-profit boards and committees cannot act by correspondence (e.g., email); they can only act by meeting or by unanimous written consent.

A meeting is defined by law as an event where everyone can be heard “simultaneously.” You need not see everyone, but everyone must be “present” so you can all hear the debate and everyone’s comments can be heard by everyone in attendance. It’s hard to believe that meeting at a coffee shop or patching in people by telephone works and a simple email doesn’t; but it’s true.

Why, you say? First, remember that email is, well, just mail. It’s correspondence, very speedy correspondence, but still just letters.

Second, let’s remember that meetings were the only efficient way to accomplish business before the electronic age; so it’s partly historical (how would we feel if the founding fathers wrote and voted on the constitution by correspondence?).

But, most importantly it’s about requiring everyone to be present for the debate. My example above shows what can happen when the open debate is missed. Email comments alone are not debate. “Reply all” may seem like open debate, but it’s not. Bodies (boards and committees) are established to give a group of people responsibility, and groups have always been required to meet and discuss as a critical part of making decisions.

In short, you need to know three things: (1) meetings are unnecessary if all who are entitled to vote agree by (i.e., sign) a “written consent,” so the email may be enforceable if everyone agrees, that is, it’s a unanimous vote (and every email is copied and kept with your meeting minutes), (2) if it’s not unanimous, make very sure that it is approved at the next board/committee meeting (and included in meeting minutes), (3) if it’s a major decision, skip the email (or make sure your house needs a lot of carpet cleaning).