Leadership Letter
November 2024
ASK COUNSELOR TARA
ASCE’s General Counsel Tara Hoke clarifies legal questions facing sections and branches here each month. Send Tara an email with your question.
Can our board take an action without holding a meeting, such as a vote by email?
As with many other subjects related to corporate powers, the issue of board voting is governed by the applicable state law. As a nonprofit incorporated in the state of New York, ASCE operates under the rules of the New York Not-For-Profit Corporation Law. Section 708(b) of this state code reads:
“Unless otherwise restricted by the certificate of incorporation or the by-laws, any action required or permitted to be taken by the board or any committee thereof may be taken without a meeting if all members of the board or the committee consent to the adoption of a resolution authorizing the action. Such consent may be written or electronic.”
This same language, or similar versions thereof, can also be found in the corporate codes of most (if not all) other U.S. states and jurisdictions – meaning that in almost all circumstances, decisions made by the board of a U.S. corporation must be made by a unanimous decision of all board members, not merely a majority vote or even a unanimous vote of all those who cast votes.
Why is there such a heightened requirement for action without a meeting?
The primary reason may be understood by considering that board members have fiduciary duties to their volunteer organization, and that among these duties is the duty of care. This duty requires board members to make an informed decision on the issues before them, with a sound and reasonable understanding of the facts – and following an opportunity for discussion of other opinions or alternatives. Because of the difficulties in having an effective, collaborative opportunity for discussion over email or other passive means of communication, ensuring that even one voice of dissent has an equal opportunity to speak and be heard by all, it is felt that board members cannot truly fulfill their duty of care without an “active” meeting unless there is no need for discussion – because every single member of the board is in complete agreement.
While ASCE’s sections, branches, and other geographic units are not New York corporations in and of themselves, ASCE nevertheless imposes this same requirement of unanimous consent on all organizational entities. ASCE believes that leadership meetings and discussions are a critical element of good governance, one that may only be bypassed on decisions that have already reached complete consensus.