In Part 1 of our series "Online Meetings: When & How", we discussed some best practices for holding virtual board meetings during this time of social distancing. But what about membership meetings? In North Carolina, Governor Roy Cooper issued Executive Order #136 which allowed for nonprofit membership meetings to be held virtually under certain circumstances. Executive Order #149 extended this order until August 31, 2020, and states that a board can “in its sole discretion” determine that all or part of a membership meeting may be conducted by remote communication and balloting, that association members can participate in meetings via remote communication and that members may vote through “action by written ballot” (in other words, you cannot vote by raising your hand in a Zoom meeting). South Carolina has not made any specific executive orders that speak to holding virtual membership meetings at this time.
As we mentioned in our previous article, synergistic decision making is an important part of any meeting and this is also true for membership meetings. This, of course, is much harder to achieve with membership meetings as there is a greater number of participants - it isn't really practical to have dozens of people having a discussion on Zoom or via teleconference.
But online membership meetings also potentially present another problem and that is due process. Every member of the association has the right to attend a meeting and vote on the issues at hand. Sure, you could send every member of the association a Zoom invite, but everyone may not have a computer or internet access.
So, what do you do to facilitate voting? One of the best options here is probably to use a mail-in ballot approach.
The mail-in ballot approach begins with a ballot being mailed out from the association to the membership. The business being discussed for the upcoming meeting should be stated on the ballot - election information, spaces for write-in votes, information on specific issues that are being voted upon, things like that. This ballot can be returned by mail or via email. One of the most important things about using the mail-in ballot approach is that you must have a deadline for having the ballot returned. Then, once the deadline passes, the votes are opened and tallied. Sounds pretty simple right?
Well, unfortunately the law doesn't necessarily like this approach. That's why most associations that are going this route will also conduct a virtual meeting via Zoom or teleconference during this time period. In these meetings, there is no voting taking place. If you're using this approach, your association should mail out notices to the membership stating that there will be an electronic meeting on a specific day/time and give them login instructions. Yes, this approach still may be problematic, but we are living in unprecedented times and associations, like everyone else, are having to adapt as best they can.
When Should the Ballots be Mailed and Returned?
When should you mail the ballots and require them to be returned? You have a few options. You can mail the ballot out alongside the meeting notice and ask that it be returned prior to the Zoom meeting so the results can be discussed at the meeting. Another option is again sending the ballot out along with the meeting notice but making the return deadline shortly after the meeting so members watching the presentation can get information and perhaps ask questions. Option two - requiring the ballot be returned shortly after the meeting - typically works out better.
There is a third option in this scenario - waiting to mail the ballot until after the Zoom meeting. You would still properly notice the meeting via mail, discuss the association business in the meeting and then perhaps alter the ballot a bit depending on what issues are most affecting the membership.
Establishing a Quorum
A key factor when voting via mail-in ballot is one that is also always play when conducting in-person voting - a quorum must be established. You must have enough ballots returned to have established a quorum at the meeting. For example, if you have 100 units and your quorum is 10%, then you must have gotten 10 ballots back for this to have counted as your membership meeting. And remember, the mail-in voting part of this is what counts as your membership meeting, not the Zoom conference.
What Does the Law Say?
In these unprecedented times, there are a few other important things to remember when conducting your membership meetings via mail and Zoom. First, you cannot notice meetings via email unless your governing documents specifically allow for it (and this is rare). The law is very clear that you must physically mail meeting notices to the membership. Another thing to keep in mind is that you cannot legally take a vote during a Zoom meeting of the membership.
Can't We Just Have an In-Person Meeting?
Some may be asking "Can't we just have a regular meeting if we follow all the rules?". Well, yes you can, with some really tight restrictions. In North Carolina, you currently cannot have a gathering of more than 25 people outdoors. So, could you do it in an outdoor space in your community? Sure, as long as it’s no more than 25 people. But what do you do when the 26th person shows up? As far as meeting indoors, currently in NC its limited to 10 people. Factoring in social distancing requirements, it will be quite difficult to hold an in-person meeting and follow due process requirements. The current mandates in South Carolina are a little more lax - there is no limit on the number of persons who can gather, but they've strongly discouraged groups of more than 100. So, you still have to follow social distancing guidelines, but it may be easier to do for an association in SC.
Conducting association business in these new ways is uncharted territory for many. If you have questions about how to best carry out a virtual meeting or handle mail-in ballots, be sure to consult your governing documents and reach out to your Community Manager for trusted guidance.