Just following up on our discussion about e-mail voting and the specific feedback about this issue from of our NYCON attorneys, Kevin Stadelmaier. As Doug mentioned, board votes by e-mail are a problem. Here is Kevin's feedback:
Its not codified specifically that you can't vote by e-mail...however, 708(a) indicates that all corporate action be taken via a meeting where Directors are present in person or via teleconference (708 c) or through the 708(b) "Action without a Meeting.(AWOAM)" There are no other voting methods specified. A meeting must grant each director present an opportunity to be heard and hear others deliberate on a matter before voting. Also, deliberation cannot be based upon separate conversations between Board members but instead must be heard by all Board members appearing at a meeting. (See Hauben v. Morris, 291 NYS 96 (Sup. Ct. 1936).
"AWOAM" requires that All Directors without abstention submit their votes in writing. NYS law has not evolved to the point where submission for votes by e-mail would qualify as a "writing" according to the statute under 708(b) "Action without a Meeting." We interpret that to prohibit anything but an originally signed document. A vote by e-mail on a Board matter, where an actual meeting is held, would be akin to a proxy vote on a Board matter which is specifically disallowed under statute and allowed only in the context of membership meetings. Hope this helps.
Kevin M. Stadelmaier, Esq., Legal Advisor
New York Council of Nonprofits, Inc.
295 Main Street, Suite 106
Ellicott Square Building
Buffalo, New York 14203
