In our latest "Ask the Experts" webinar series, we invited attorney Steven Black with Black, Slaughter & Black, P.A., to discuss several options for holding board meetings and conducting association business in this time of social distancing. Though your board must ultimately decide what is best for the association, it is crucial to know what options are available and how you can efficiently and fairly conduct business while abiding by your Declaration, Bylaws, Articles of Incorporation and state statutes.
Robert's Rules of Order & "Synergistic Decision Making"
If you've spent any amount of time serving on an association board, you've likely heard of Robert's Rules of Order which is widely considered the go-to for conducting meaningful, well-organized meetings. Robert's Rules asserts that there is great value in people meeting together and having discussions in order to come to the best decisions possible. It is strongly recommended that boards try to follow Robert’s Rules when it comes to their meetings.
This idea of group discussion leading to better decision making isn't just found in Robert’s Rules, but also based on an actual theory called "Synergistic Decision Making". This theory states that the more people involved in making a decision, the better that decision will be. This theory has actually been tested and proven - adding just one person to a decision-making process can increase the value and correctness of a decision by 20%. Of course, with this theory there comes a point of diminished returns - if you have 100 people trying to make one decision, it probably won't be very effective.
But, overall, Robert's Rules and this theory are probably right - if your board can get together and have a constructive discussion, you're more likely to make better decisions. However, with social distancing protocols of today, this may not be a viable option. Thankfully, technology offers some great options that will allow your board to continue conducting business during disruptions to daily life.
Electronic Voting Options for Board Members
When conducting regular in-person board meetings, if you have a duly called meeting and, as long as the quorum requirement is met, the board members present have the authority to make decisions by majority vote. But these days you may not be able to meet in person. So, what are your options?
Unanimous Consent via Email
One option available to boards is voting electronically by unanimous consent. The key point here is that it must be unanimous - all board members must expressly agree to waive the notice of meeting and to the item being voted upon. This can be done via email and each member must respond with consent. If 4 out of 5 members respond agreeing to the issue at hand, you may have a majority but you do not have unanimous consent so that isn't good enough for the issue to pass when using this method.
What if Unanimous Consent Doesn't Work for a Particular Situation?
What are your options if one member doesn't respond or disagrees with the majority? It’s at this point you may want to have a duly called and noticed conference call or virtual meeting where you only need the majority present to vote. This can be a quick meeting where you simply call it to order, vote and adjourn the meeting.
Why take the time now to talk about things you do when there isn't a pandemic going on? Because it isn't that much different than what you do during a pandemic except for the physical distance between everyone. You can still conduct a lot of business through electronic unanimous consent if needed, you just have a lot more business to conduct in that manner. If you can get all board members to unanimously consent to the items being discussed, then that is an effective way to vote and that's what a lot of boards are currently doing.
Virtual Board Meetings
If you have an issue that is more complicated than a simple yes or no vote and needs to be discussed in more detail, then there are virtual options available for board members. In fact, there are statutes in both North Carolina and South Carolina that allow for electronic meetings of boards of directors. You can have a duly called board meeting via Zoom or Skype or even by telephone conference if you'd like. The main legal requirement for using any of these platforms is that everyone present can hear what is going on and is able to interact with other meeting participants.
Allowing Homeowner Participation
In North Carolina, there is a statute that requires association members to be given the opportunity to attend a portion of board meetings at regular intervals and to speak with the board about their issue(s)each year. However, the number of meetings and the frequency of these invitations is not specified. So, what should you do if a member wants to attend a virtual board meeting during a pandemic? For the one or two meetings that might occur during the pandemic, it’s probably ok to not invite members.
However, if social distancing requirements continue for longer than expected – say for more than 6 months—your board may have to figure out a way to allow members to attend virtual meetings. This will probably include delivering an invitation with Zoom (or whatever platform you’re using) instructions, the meeting’s date and time, and involve using a meeting moderator so the meeting can be kept efficient and orderly.
It is ultimately up to your board to decide what is best for the association while adhering to your declaration, bylaws and state statutes. For more detailed information specific to your association, we recommend that you reach out to your community manager for trusted guidance on how to proceed.
Be sure to be on the lookout in the coming weeks for Part 2 of "Online Meetings: When & How" which will discuss Membership Meetings. If you have any questions on the topics covered in this article, please reach out to your CAMS community manager today.