Due to the Coronavirus, in the last several weeks we have received a lifetime’s worth of questions about moving in-person business meetings and conventions to some type of electronic format. Our firm’s two Professional Registered Parliamentarian attorneys have assisted many clients in doing just that—board meetings, annual meetings, houses of delegates, etc. However, before jumping online there are considerations that should be addressed.
Is an Electronic Meeting or Electronic Voting Allowed?
There are two main online approaches to conducting business: (1) an electronic meeting and (2) electronic voting. An electronic meeting attempts to mirror an in-person meeting to some extent—members likely get to participate, discuss proposals (whether by video, phone or text), and vote on matters. In contrast, with electronic voting, the member is usually limited to voting for or against a proposal.
As a start, it’s always best to find language in the governing documents or the law that authorizes electronic meetings or electronic voting. Without such support there may be legal or political challenges from members, which can be embarrassing and/or expensive, even if not eventually successful.
Depending on the type of organization and its location, some form of electronic meeting or electronic voting may already be permitted by law or the governing documents. For instance, for associations incorporated as nonprofits, many states have statutes that allow board meetings to be conducted telephonically or for decisions to be made by written unanimous consent, which may include e-mail. Membership meetings usually have fewer options. (See The Coronavirus, Flu, and HOA/Condo Association Meetings)
On the other hand, national and international associations and unions tend not to have statutory support for doing things electronically. In those instances or when there is no helpful state law, we look to the governing documents for supporting language. Constitutions and bylaws sometimes have language that provides for voting outside of meetings or even electronic meetings under certain circumstances. Additionally, the governing documents may have provisions for extraordinary actions in the event of emergencies.
For organizations incorporated as nonprofits, there may also be state statutes that can assist in the event of an emergency. For instance, common nonprofit corporation act language permits a court to fix the time and place of a membership meeting, establish quorum, and enter such orders as necessary to accomplish the purposes of the meeting. Many nonprofit corporation acts also allow a board of directors to assume greater authority in the event of an “emergency,” which may be met if “a quorum of the corporation‘s directors cannot readily be assembled because of some catastrophic event.” In instances of emergency, association boards by statute may also have authority to adopt, amend, and repeal bylaws to manage the corporation, even if the membership would normally have to be involved in that process.
At times, circumstances may require an online meeting even if there is no statute or governing document language for support. Emergencies such as pandemics or weather-related destruction may simply prevent an in-person meeting. Options at such times are to cancel the meeting, postpone the meeting, or determine how to transact business without a physical gathering. While there is always a risk with proceeding, given the circumstances and upon advice of the association’s legal counsel, some alternative means of making decisions may simply have to be done. Federal or state emergency declarations or prohibitions on large in-person gatherings may support such actions. Again, however, it is always best to find supporting language in the law or governing documents, and to obtain legal guidance as to options in the absence of such language.
What Will Be the Format or the Platform of the Meeting?
We are often asked to contemplate rules for an online meeting before knowing what form the online meeting will take. It matters.
Is the intent that the meeting will attempt to mirror the in-person experience? If so, will it be an audiovisual meeting, such as a Zoom or Skype meeting, where members can see and talk to each other. How will members seek recognition (to debate, ask questions, or make a motion) in such an electronic format?
A step back from a full audiovisual meeting is a telephonic or audio meeting, which removes the visual component (and will lead to a different meeting experience). But how will members be recognized if the presiding officer cannot see when someone wishes to speak? And how would a member interrupt someone speaking to raise a Point of Order? How will motions with a higher priority be recognized?
A lesser option may be something in the nature of an online chat room meeting. Using this format, members can neither see nor hear each other. Instead, members seek recognition from the presiding officer and, once recognized, have time to type their comments.
With any of the forgoing options, consideration must be given both the overall technology as well as the participant’s technology. Will members have to download software or buy new equipment to participate? Will all members have a connection speed sufficient for a workable meeting? Alternatively, do members need to gather at central locations where technology is present to allow the online meeting to function? What staff will be needed at the hub of the meeting? (The presiding officer, senior advisors, and parliamentarian may need to be physically together to coordinate the online meeting, just as if they were onstage at a meeting/convention.) Who will be available to members to answer real-time technology or meeting questions?
While the focus of this article is online meetings, recognize there are often options for decisions to be made outside of a meeting. State statutes for nonprofit corporations or the governing documents may permit elections or voting on proposals by written ballot, which may include electronic voting. The main difference from a meeting is that everyone will not be voting at the same time and there is no actual meeting. (See The Coronavirus, Flu, and HOA/Condo Association Meetings)
What Special Rules Should be Adopted to Facilitate the Meeting?
Once the form and technology platform of the online meeting is established, it is almost certain that special rules will need to facilitate the meeting. Robert’s Rules of Order Newly Revised (11th Edition) notes that “If electronic meetings are to be authorized [in the Bylaws], it is advisable to adopt additional rules pertaining to their conduct.” RONR § 9 (p. 97). (If you follow The Standard Code of Parliamentary Procedure, take a look at p. 109-10 on “Telephone and Electronic Meetings.”) As with other rules of order for a convention or annual meeting, such rules tend to be adopted by the meeting body as one of its first acts.
Such “special rules of order” will vary depending on circumstances and whether the meeting is audiovisual, telephonic, or something like a chat room, but these questions should be considered:
- Who gets to participate?
- Do members connect individually or gather at central locations to participate?
- How do members seek recognition and obtain the floor?
- Must motions be submitted in writing in advance or can they be made during the online meeting?
- If motions are to be submitted in advance or in writing, what is the process for doing that? (Are motions emailed, typed into a chat box, or texted to a specific number?)
- Do motions need seconds? If so, should they be required up front, so as to not take up online meeting time?
- How long can members speak?
- How do you know for what reason a member seeks recognition? (It can matter whether someone wishes to speak for or against a proposal versus raising a Point of Order.)
- Are there total debate limits on proposals?
- How are votes taken? (On a small telephone conference, it may be possible to take voice votes or a roll call of members; however, in larger meetings there may have to be electronic vote counting.)
- If challenged, how are votes verified?
- How are votes reported? (Technology may allow the vote of each person to be shown, but that is normally NOT done at an in-person meeting.)
As can be seen from this discussion, moving a meeting online is more complicated than simply having the technology. However, with good planning as well as legal and parliamentary advice, it is possible to make efficient, workable online decisions. While online meetings are not yet a substitute for an in-person meeting with deliberation, they can get the job done, especially in difficult times.
Black, Slaughter & Black is the only law firm in the U.S. with two Professional Registered Parliamentarian attorneys who are members of the American College of Parliamentary Lawyers. Jim is author of two books on meeting procedure, The Complete Idiot’s Guide to Parliamentary Procedure Fast-Track and Notes and Comment on Robert’s Rules (Fourth Edition). For more information, visit our Parliamentary Law page or www.jimslaughter.com