Can a Board Legally Vote in Emails?
Many Boards are finding that it is much easier to take action by voting via email. Is this a legal method of voting?
Hawaii Revised Statutes (“HRS”) Chapter 514B, the Condominium Property Act, does not specify whether Board members can vote by written consent or not. Sometimes an association’s Bylaws or Declaration may provide for voting by “written consent” or by email or fax. But if the documents are silent, the Board needs to look elsewhere.
HRS Section 514B-125(c) states all board meetings shall be conducted in accordance with the most recent edition of Robert’s Rules of Order Newly Revised. Section 49 of Robert’s states:
. . . a board can transact business only in a regular or properly called meeting of which every board member has been notified – or at an adjournment of one of these meetings – and at which a quorum . . . is present. The personal approval of a proposed action obtained separately by telephone, individual interviews, or in writing, even from every member of the board, is not the approval of the board, since the members lacked the opportunity to mutually debate and decide the matter as a deliberative body. If action is taken on such a basis, it must be ratified at a regular or properly called board meeting in order to become an official act of the board.
Section 10 of Robert’s explains a motion to ratify is used to confirm or make valid an action already taken that cannot become valid until approved by the assembly. Cases where the procedure of ratification is applicable include action taken by officers in excess of their instructions or authority. An assembly can ratify only such actions of its officers as it would have had the right to authorize in advance. It cannot make valid a voice-vote election when the bylaws require elections to be by ballot; nor can it ratify anything done in violation of procedural rules prescribed by national, state, or local law, or in violation of its own bylaws.
A motion to ratify requires a second, it is debatable, and requires a majority vote, except if the motion proposes an action which the bylaws prescribe a requirement of more than a majority vote.
Thus, if the Board of a non-incorporated association votes on an issue via email, it is considered under Robert’s Rules outside of its authority. However, the action may be validated by a motion to ratify at the next Board meeting approved by a majority of the Board members because the law and Bylaws do not prescribe voting this way.
If a vote occurs by email, and the Board takes action based on the vote, but later the vote is not ratified by a majority, then the Board can have an issue. Therefore, the Board should sparingly use the method of voting by email and only in cases where it is confident the action will be ratified.