Nonprofit Board Meetings in the Pandemic Era
Reprinted with permission from the Maine Nonprofit Law E-Bulletin May 2020, by Robert H. Levin, Attorney-at-Law. To subscribe to the Maine Nonprofit Law E-Bulletin, email firstname.lastname@example.org with the word “Subscribe” in the subject line.
The covid crisis has affected Maine nonprofit organizations in countless ways. Among the most common questions coming to the Maine Association of Nonprofits these days is whether Board, membership, and committee meetings can be held via conference call or online videoconference. The good news is that for the vast majority of organizations, conference call and video meetings are indeed allowed. Here are some questions you’ve asked, from easy-peasy to mind-bending.
What I really want to know is, can we hold our Board and committee meetings by phone or online?
Good question. Let’s start with § 705(2) of the Maine Nonprofit Corporation Act, which states that unless expressly restricted by the organization’s Bylaws or Articles of Incorporation, any Board or committee meeting can be attended in whole or in part by “conference telephone or similar communications equipment” so long as everyone can hear each other. “Similar communications equipment” presumably includes videoconference services such as Zoom, but would not allow meetings where there is no live audio, such as chat rooms, instant messaging, or email (although see below for making decisions outside of meetings by email).
Most Bylaws include language that mirrors this statutory provision. Others are silent on the question of conference call or video meetings, but that’s not a problem because the statute fills that silence with its default provision allowing them. The only trouble would arise is if an organization’s Bylaws expressly prohibit video or telephone Board or committee meetings, but in my 17 years of practice I have yet to come across an organization with this problem.
Ok, that covers Board and committee meetings. What about membership meetings, for those organizations that have members with decision making authority?
I’m glad you asked. Section 602(1) of the MNCA provides that “Meetings of members, if any, may be held at such place, either within or without this State, as may be provided in the bylaws. In the absence of any such provision, all meetings shall be held at the registered office of the corporation in this State.”
Hopefully, your Bylaws have a provision that allows for maximum flexibility for membership meetings, something along the lines of “Membership meetings may be held at such time and place as the Board of Directors may determine.” In that case, the Board would have the appropriate authority to hold a membership meeting online. Of course, membership meetings typically involve many more attendees than a Board or committee meeting, so the individual or group managing the meeting should take care to do advance planning on how to ensure a smooth flow. See below for some tips.
What’s that? Your nonprofit is a membership organization and its Bylaws require an in-person membership or Board meeting?
Granted, this is a trickier situation. There’s no perfect answer. On the one hand, it’s a violation of the Governor’s Restarting Plan for people to gather in groups greater than 10 (tentatively rising to 50 in June, but only where social distancing can occur in accordance with rigorous guidelines). On the other hand, your Bylaws have a specific requirement to meet in person, and sometimes they even specify a particular month of the year. Either way, your organization has to violate something – either the Governor’s order or your Bylaws. One violation risks the spread of a deadly disease, possible criminal penalties, and possibly even civil liability under tort law if people were to get sick from a meeting; the other is substantively harmless, and might generate a few disgruntled complaints. I think you can see where I’m going with this…
As I see it, here are your two chief options:
- Hold the meeting online anyway. This will usually be the best approach. As long as you include all members by sending proper notice and conducting the meeting transparently and with as much input as reasonably possible, there is little grounds for complaint. A good faith, technical violation of your Bylaws in order to maintain the smooth functioning of the organization and to avoid mass illness or death of staff and members is a perfectly understandable and reasonable response. It will help if the Board carefully documents why it made its decision to proceed with the online meeting (and feel free to cite MANP and this post as support). If possible, you could amend the Bylaws so as to expressly allow online meetings, although usually such an amendment will require a membership vote in the first place, so that probably won’t resolve the process issue. But at the end of the day, even if you did have a cranky member who called you out on a process violation, it’s highly unlikely that they would take it so far as to file a lawsuit over the issue.
- Postpone the meeting. If there is no important business to conduct, then an indefinite postponement could work. Along the same lines, decisions could be made outside of a formal meeting by email or other electronic means, although the down side is that there is no opportunity for deliberation by the members. (For a refresher on email voting and other ways of making decisions in the absence of a meeting, see my December 2019 E-Bulletin.) Alternatively, I know of one organization that cancelled its annual membership meeting at which it would ordinarily vote on officers. Instead, all of the currently serving officers agreed to serve another year, and the Board communicated this information in advance to its members. I see no problem with this decision – it’s a reasonable exercise of discretion in the midst of a hundred-year pandemic. And in case you’re wondering, there is virtually zero risk of pushback from the Maine Attorney General or the Internal Revenue Service on reasonable technical violations of Bylaws in order to avoid mass illness and death.
What, you have more questions? Go ahead, I have time for two more…
What if our Board or membership meeting is held virtually but we have technical problems, so it becomes questionable whether all of the participants can “hear each other,” as the statute requires?
Ooh, good question. How to respond to tech snafus is a judgment call by the President or whoever is running the meeting, based on a number of factors, including the importance of the subject matter and the scope of the tech issue (is it just one person failing to hear, or a widespread problem?). In some cases, it might be perfectly reasonable to continue with the meeting and everyone does their best. In other circumstances, it might be best to reschedule the entire meeting, or at least postpone an agenda item that is particularly thorny or controversial.
Alright, you’ve convinced me that we can have an online meeting. But how do we make sure things go smoothly? Do you have any tips?
Excellent question. Just because you can have an online meeting doesn’t mean it will be easy. As we’ve all learned over the past couple months, virtual meetings take a bit more forethought and planning. Here’s a comprehensive guidebook from BoardSource, and here are some more useful tips.