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Can a nonprofit board vote by email?

Mahesh Murthy, FounderVoting and decisions

Only if your bylaws and state law let the board act without a meeting. Most states need every director's written consent. Texas lets bylaws allow fewer.

Only if your bylaws and your state's nonprofit law let the board act without a meeting, and then only in the way they allow. Most states allow it by unanimous written consent, and an email from every director can meet that. Some, Texas among them, let the bylaws allow fewer than all directors to act in writing.

This is general information, not legal advice. Your counsel can tell you whether a particular vote counts.

Why an email vote is not a meeting vote

A board acts at a meeting, where a quorum is present and the directors can hear one another, or it acts without a meeting, in writing. New York's statute says any reference to action by the board "shall mean such action at a meeting of the board" unless the law provides otherwise (N-PCL §708(a)).

An email thread is not a meeting. Directors aren't present at the same time, and nobody can count a quorum. So an email vote is action without a meeting, and the real question is what your state law and your bylaws say about that.

What state law says

Blue Avocado and the Charity Lawyer Blog both describe unanimous written consent as the rule in most states. California, New York and Texas show the range.

California: every director consents in writing

California's Nonprofit Public Benefit Corporation Law lets the board act without a meeting "if all directors individually or collectively consent in writing to that action." The consents "shall be filed with the minutes of the proceedings of the board," and the action has "the same force and effect as a unanimous vote of the directors" (Corp. Code §5211(b)).

Apart from a narrow exception for directors with a conflict who abstain in writing, one director who doesn't consent means there is no action, and the matter waits for a meeting.

New York: unanimous, and email is expressly allowed

New York allows action without a meeting "if all members of the board or the committee consent to the adoption of a resolution authorizing the action," unless the certificate of incorporation or the bylaws restrict it. The statute adds, "Such consent may be written or electronic." An emailed consent has to carry information showing that the director authorized it. The resolution and the consents are filed with the minutes (N-PCL §708(b)).

An email that plainly comes from the director appears to fit that description. Ask counsel to confirm it for your board.

Texas: the bylaws can allow fewer than all

In Texas the certificate of formation or the bylaws may provide that an action can be taken without a meeting "if a written consent, stating the action to be taken, is signed by the number of directors or committee members necessary to take that action at a meeting at which all of the directors or committee members are present and voting." The consent must show the date of each signature, and "prompt notice" goes to every director who did not sign (Tex. Bus. Orgs. Code §22.220).

So a Texas board can act in writing with fewer than all of its directors, but only if its governing documents say so. If yours are silent, plan on needing every director and confirm with counsel.

Other states

North Carolina changed its law in 2021. A board there can act by a unanimous email vote unless the articles or bylaws prevent it, and the bylaws no longer have to authorize it first (North Carolina Center for Nonprofits). The District of Columbia allows unanimous written consent signed by every director entitled to vote (LawHelp DC). Arizona also requires consent that is unanimous and in writing (Charity Lawyer Blog).

To find your own state's rule, look in its nonprofit corporation act for a section headed "action without meeting" or "action by written consent."

State by state

We have a page for each state, quoting the statute and the date we read it.

Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming.

What your bylaws decide

Your bylaws can be stricter than the statute, but not looser. Check them for:

  1. Whether the board may act without a meeting at all. New York's statute lets the certificate or bylaws restrict it, and bylaws in other states can limit it too. If yours say the board acts only at properly called meetings, there are no email votes.
  2. Whether it must be unanimous. In Texas the governing documents have to opt in to anything less. Even then, you need as many signatures as it would take to pass the action if every director were at the meeting and voting.
  3. What counts as a signature. Older bylaws speak of "signed" consents. New York's statute settles that for New York boards. Elsewhere, ask whether an email from the director's known address counts as a signed writing. The Charity Lawyer Blog warns that with email it is hard to be sure the named director actually sent the vote.

If your bylaws are silent or unclear, amend them to say how the board may act between meetings. That is easier than arguing about it after a vote.

How to run an email vote

  1. Check the rule first. Confirm from the bylaws and the statute that action without a meeting is allowed, and whether it must be unanimous.
  2. Send one motion, in full, to every director. Record exactly the text the directors voted on. If the text changes partway through, start the vote again.
  3. Ask each director to reply from their own address with a clear yes or no. Say in the email whether replies go to the whole board or to the secretary.
  4. Set a closing time. Without one, nobody knows when the result is final or whether a late reply counts.
  5. Count only what the rule allows. Under a unanimous-consent rule, one "no" or one director who never replies means no action was taken. Take it to the next meeting.
  6. File the consents with the minutes. California and New York both require it by statute. Keep the emails, or a printed copy, with the minutes, and have the next meeting's minutes note that the board acted by written consent on a stated date.
  7. Document it by the next meeting or within 60 days, whichever is later. Form 990 asks whether the organization "contemporaneously documented" every meeting and "written action taken" by its board, and that is how the IRS defines contemporaneous (Instructions for Form 990, Part VI, line 8).

For the wording of the consent itself, see our guide to unanimous written consent, which includes a sample.

When not to vote by email

Email suits decisions that need no discussion, like approving a contract the board already debated or accepting a resignation. It is a poor way to decide anything contested, because directors can't hear one another's questions or change each other's minds.

A budget, a bylaws change, hiring or removing an executive director, or anything a director has asked questions about belongs at a meeting. California, for example, treats joining by phone or video as being present, as long as everyone can hear one another (Corp. Code §5211(a)(6)). If your bylaws and state law allow that, a short video call may do when email won't.

How Karma Compass handles this

Karma Compass won't draft a vote until someone on your board records what your bylaws say about voting outside a meeting, the threshold to pass a motion, and whether a vote can be changed, with the passage cited. If your bylaws don't allow voting outside a meeting, it won't draft one.

When a vote is allowed, each director gets a voting link made for them alone. It works once and expires when voting closes. Every vote is saved with who cast it and when, and that record can go into the minutes. Voting is part of the Free plan. Whether a particular vote meets your state's rules is still a question for your counsel.

See how board votes by email work in Karma Compass

Sources

Questions this post answers

  • Can a nonprofit board vote by email?

    Only if the bylaws and state law let the board act without a meeting. Most states require every director to consent in writing, and an email from each director can meet that. Texas lets the bylaws allow fewer. This is general information, not legal advice.

  • Does an email vote have to be unanimous?

    In most states, yes. One director who says no or never replies means no action was taken, and the matter waits for a meeting. Texas is one exception, and only where the certificate of formation or bylaws allow a smaller number.

  • Does an email count as written consent?

    New York's statute says consent may be written or electronic and may be sent by email, as long as it shows the director authorized it. North Carolina also allows a unanimous email vote. Other states require consent in writing without spelling out email, so ask counsel how yours treats it.

  • Where do we keep the record of an email vote?

    With the minutes. California and New York both require written consents to be filed with the minutes of the board's proceedings.

  • What if a director doesn't reply?

    Under a unanimous-consent rule the motion hasn't passed. Take it to the next meeting, or hold a short video meeting if your bylaws and state law let directors attend that way.

  • Can our bylaws forbid email votes?

    In New York and North Carolina, yes. Both let the governing documents restrict or prevent action without a meeting. Elsewhere, check your statute and ask counsel.

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