Technology has made “meeting” with others as easy as clicking a button to begin a conference call, start a video chat, or send an email. This is especially relevant for the boards of nonprofit organizations (NPOs). Board members may be dispersed across geographic locations and face conflicting schedules. Such challenges make a phone call or email easier for the board to conduct business than meeting in person. However, the rules about when and how NPO boards can conduct official business via technology require board members to understand the relationship between the NPO’s constitution and bylaws, state law, and parliamentary procedure.
The first place a board should look when there is a question of whether it may meet using technology is the organization’s bylaws. Although not required in every state, bylaws are internal operating rules that provide crucial guidance to the board about how to conduct board meetings. How many people must be present to take a binding vote? What kind of notice should board members receive before a meeting? Is someone on a conference call “present” for a board meeting? These are questions that are likely to be answered in the bylaws, but they also implicate the use of technology. Some NPO bylaws may require the board to meet in person. Others may restrict what matters may be voted on remotely and what forms of technology are acceptable for a board meeting or vote. If an NPO’s bylaws are silent on the use of electronic communications to conduct business, the board may want to consider amending the bylaws to include policies for electronic meetings.
Although the law in this area varies from state to state, the vast majority of states have laws in place that allow NPO boards to utilize technology to meet. Indeed, only 3 states are silent on whether NPO boards may meet electronically, whereas the other 47 states have laws explicitly allowing some form of technology to be used for NPO board members to participate in meetings remotely. However, these states vary in their requirements for acceptable forms of technology. For example, some states allow NPO boards to use any form of technology through which board members can “communicate” during the meeting. Other states only allow technology that gives board members the ability to hear or read each other’s remarks concurrent with the proceedings. Finally, there are states that require technology which enables board members to hear each other during the proceedings. These differences affect whether a board may, for example, consider a motion via email versus conference call. Additionally, many of these states give NPOs discretion to require their boards to meet in person in their bylaws or equivalent governing documents.
Although state laws may authorize the use of technology for remote NPO board meetings, those laws do not answer many questions about when and how the board may meet electronically. Are there certain matters that require an in-person meeting of the board, such as taking disciplinary action against an employee or selecting a new executive director? Who is responsible for acquiring the technology for the meeting? Does the board need special procedural rules for electronic meetings? These are all challenges that could arise during an electronic meeting that state laws do not address. Therefore, it benefits NPO boards to review their respective state laws and bylaws to identify any gaps that may need to be filled with new policies on how to conduct electronic meetings.
NPO boards may also look to Robert’s Rules of Order for guidance in determining the organization’s policies on electronic meetings. For example, Robert’s Rules of Order, 11th Edition, Newly Revised, recommends that organizations which authorize their boards to meet electronically indicate whether the members who are not present physically have the right to participate via appropriate technology, or whether the board may disallow such participation. The Rules also state that the notice of an electronic meeting must include an “adequate description” of how to participate in the meeting (for example, by providing the phone number and code to enter a teleconference). Although NPOs are not automatically bound to Robert’s Rules of Order, many NPO charters and bylaws require the board to conduct meetings according to the Rules. For those that do not have such a requirement, the Rules still provide helpful suggestions of where to start in devising policies for electronic meetings.
Technology can be an excellent tool for NPO boards to efficiently conduct business when their members are spread out geographically or even when members have conflicting schedules. However, it is important for NPOs that wish to utilize electronic meetings to proactively review their bylaws in light of state law and guidance from Robert’s Rules of Order. These sources can help NPOs detect blind spots in their current policies to ensure electronic meetings are conducted in a manner that provides all participants a fair opportunity to participate.
At Crabbe, Brown & James, our attorneys have significant experience in advising and serving on the boards of nonprofit organizations. Managing Partner Larry H. James was the founding president of the Lincoln Theater and has given his time to more than 20 boards and commissions. He currently serves on the Franklin County Guardianship Services Board and the Board of Trustees of Kenyon College. His experiences and those of our entire team provide valuable expertise to help your nonprofit board navigate challenging legal issues.
 Some NPOs may also be governed by their charter, articles of incorporation, and/or a constitution instead of or in addition to bylaws. Although only bylaws are discussed here, an NPO board should review all of these potential sources of authority when determining the NPO’s policies for electronic meetings.