Leadership Letter
June 2023
ASK COUNSELOR TARA
ASCE’s General Counsel Tara Hoke responds to legal questions posed by Sections and Branches here each month. Send Tara an email with your question.
Can section/branch board members cast meeting votes by proxy?
While proxy voting may seem to be a good solution for cases when a board member is unable to participate in an important meeting, in fact, proxy voting by board members is almost universally rejected by all sources of nonprofit governance. Many states have adopted regulations that prohibit proxy voting at meetings of nonprofit officers and directors.
In ASCE’s case, a ban on board member proxies may be inferred by the fact that New York’s Not-for-Profit Corporation Law authorizes proxy voting by members at a membership meeting, but no similar permission exists in the rules for board meetings. Moreover, Robert’s Rules describes proxy voting as a practice that “should neither be allowed nor required” and notes that adoption of its rules as parliamentary authority should be deemed as a prohibition on proxy voting.
Why is proxy voting so disfavored for board members? Perhaps the primary reason is that it is difficult to reconcile a proxy vote with the board member’s fiduciary duty to make decisions in good faith and with adequate knowledge.
Proxy voting comes in two types:
1. A specific proxy, in which the proxy holder is directed to cast a particular vote;
2. A general proxy, in which the proxy holder has discretion to cast whatever vote the holder chooses.
In the first case, the board member casts a vote before the issue is actually discussed at the meeting. In so doing, the board member is precluding the possibility that his/her vote may be changed by information or arguments presented at the meeting, and the board member is denying everyone else at the meeting the opportunity to let their viewpoints be heard. In the second case, the board member casts off the decision-making responsibility entirely, disregarding the obligation to apply his/her independent judgment and reasoning to an important decision.
Of course, in a role involving volunteer service, it is understandable that board members may have work, family, or other commitments that conflict with attendance at a meeting – and sometimes those meetings may involve issues where the member has a strong desire to make his/her views known. But in the best interests of the board and its deliberative process, decision-making authority should rest only with members who participate in the board’s discussion either in person or by phone or web conferencing.
ASCE General Counsel Tara Hoke responds to legal questions posed by Sections and Branches here each month. Send Tara an email with your question.