Can the
Board conduct e-mail votes?
We are often asked what the law provides concerning whether Board members must
vote at a called meeting or if business may be done by e-mail. To answer
this question requires deference to the hierarchy of documents. In
SC, in descending order of authority these are:
-
Federal Law
-
SC Law
-
SC Non-Profit Corporation Act
-
Declaration or Master Deed, including Covenants, Conditions & Restrictions,
(or CC&Rs)
-
Articles of Incorporation
-
Bylaws
-
Rules and Regulations
South Carolina Code Section 33-31-820(c)
of the South Carolina Non-Profit Corporation Act provides that a Board may permit directors to participate in
meetings by or through the use of any means of communication by which all
directors participating may hear each other simultaneously during the meeting.
A director participating in a meeting by teleconference is deemed to be present in
person at the meeting, unless the Articles or the By-laws of the organization
provide otherwise.
Remember the hierarchy of documents
here - your Association rules may be more strict but not less strict than the
higher law.
Most communities' By-laws require that Directors cast their votes at a meeting personally.
It is extraordinarily rare to see By-laws provide for proxies to cast Director votes
at a Board meeting. This is different than a member meeting.
If there is no prohibition for
holding a meeting via telephone in your By-laws, Section 33-31-820(c)
would be applicable and would allow you to conduct Director meetings by
telephone or telephone conference as long as all of the Directors participating could hear each other
simultaneously. Any voting that was conducted at such meeting would be
valid.
Conversely,
where there is no such statute allowing voting by Directors via email or fax, there is a South Carolina statute in the Non-Profit
Corporation Act which specifically allows ballot voting (a.k.a. proxy voting) by email or fax for
members for issues upon which the members actually may vote. The items
upon which members may vote will vary by community but generally the only votes
are for the open Board members seats, items placed on the agenda for a member
vote, such as Amendments to Covenants and occasionally, budgetary matters.
In any case, for the vote to be valid, it must have been placed on the Agenda
and sent to members in accordance with a particular timetable.
We would
respectfully caution the Board that although the procedures set forth in the By-laws
and State Law and certain Rules of Order may sometimes seem tedious and inconvenient, they should be reviewed and followed.
| 
