The coronavirus global pandemic has pushed even more of our lives into cyberspace. Unless your board is socially isolating together, physical meetings create public health risks and in some cases may even be unlawful. At the same time, we’re facing an economic crisis, many organizations’ futures are imperiled, and some charitable services are in demand now more than ever. How can boards effectively govern their organizations and conduct business in these unprecedented circumstances?
The organizations most likely to survive this current moment will have engaged and responsive directors who think creatively and are willing to adapt. Fortunately, there are several ways your board can ensure its directors are doing their jobs without holding in-person meetings.
Holding a Meeting Without Gathering In Person
Oregon Revised Statutes 65.337 allows boards to meet using “any means of communication by which all directors participating may simultaneously communicate during the meeting.” Telephone and video conferencing allow board members to communicate in real time. If a meeting is happening through video or teleconference, all participating directors must be informed that a meeting is taking place and a director is considered present if they participate. For organizations that have voting members in addition to a board of directors, membership meetings can also occur by remote communication as outlined in ORS 65.205.
Conducting Business Without a Meeting
Meetings are not the only way to take corporate action—newly-enacted ORS 65.212 allows boards to vote by email unless your corporation’s governing documents prohibit it. Boards of directors may use email or other electronic means to vote on matters that come before the board. For an effective email vote, each director must receive an announcement describing what is being voted upon and provide directors not less than 48 hours to cast their email vote. This allows the board time to discuss the proposed action and get their questions answered, and those discussions can also happen over email. Directors can change their vote during this 48-hour period. When taking a vote by email, the corporation must preserve the email, including the announcement and record of the vote.
In member organizations, members can vote on issues by written ballot without holding a meeting, if such methods are not prohibited by the organization’s articles and bylaws. ORS 65.222 provides further information about how members can vote by written ballot and what information must be included with the ballot.
ORS 65.341 also allows for corporate action without a board meeting if each and every board member consents in writing to the action. Similarly, ORS 65.211 allows members to take action by unanimous written consent, which may be useful for organizations that have a small membership. These provisions allowing action by unanimous written consent may be helpful if the decision must be made before a vote by email or written ballot can be accomplished.
For nonmember organizations or for corporate matters that do not affect the membership, if emergency circumstances arise that make it impossible for directors to act in advance, directors may ratify a defective corporate action at a subsequent meeting. ORS 65.266 describes steps a board may take to ratify a corporate action that lacked proper board approval.
The challenges we now face as a result of the current global pandemic is yet another reason to develop a board of responsive, engaged directors. Having too many directors or directors who are unresponsive to electronic communications impairs the organization’s flexibility and undermines its ability to act quickly when needed. But with the right number of directors who read and respond to their email, your organization can approve corporate action in between board meetings.