action without meeting - board
A board may take action (vote on a decision) without a meeting. A board meeting is a gathering of the board in a way that the board members can communicate live and in real time.
How can a board take action (vote on a decision) without a meeting?
Unless otherwise provided in the bylaws, a board can make a decision and take an action without a meeting if either:
- unanimously agreed, that is, all the board members vote for the action in writing (such as by email), or
- notice of the vote is sent to each board member and no board member demands that action not be taken without a meeting. The action must receive the number of votes that would be necessary at a meeting at which all of the directors are present (typically a majority). The notice of the vote must be sent to each member of the board stating:
1. what the vote is about (the action to be taken),
2. a deadline for directors to respond, and
3. that failure to respond by the deadline will have the same effect as abstaining and not demanding that action not be taken without a meeting.
See § 16-6a-813.
Does a record of a board action without a meeting have to be kept?
An association is required to keep a permanent record of the actions the board takes without a meeting. See Utah Code § 16-6a-1601(1)(b). The law doesn't specify what constitutes a "record" of such actions, but at a minimum, the association should keep: (1) a copy of the notice, including the date sent, and (2) a statement by the president of the result of the vote (including the number of board members and number of votes for and against) and that no board member demanded that the action not be taken without a meeting. Altogether those items constitute the record of the action taken without a meeting and must be kept at the association's principal office for the first three years, and then kept as a permanent record of the association thereafter.
Example 1: The Hilltop Condo Association board has three board members. The board needs to decide whether to hire XYZ Company to perform certain work before the next scheduled board meeting. The president sends an email to the other board members that says:
1. It is proposed that the association hire XYZ Company to repair the water line in the basement of the building as soon as possible. The estimate for the repairs is $1,815. Please respond to this email with your vote for or against.
2. The deadline by which each board member must respond is 4:00 pm on May 1, 2019.
3. Failure to respond by the deadline will have the same effect as abstaining and not demanding that action not be taken without a meeting.
I vote in favor of the proposal.
Thank you, Betty White, President
By 4:00 pm on May 1, 2019, one other board member had sent a reply email that included the original email in the body of the email and that said, "I vote in favor of the proposal. Sincerely, Michael Knight." Nothing was received from the third board member.
The president replied to the email chain at 4:23 pm on May 1, 2019, stating that two of the three board members voted in favor of the proposal, that no board member demanded that action not be taken without a meeting, and the proposal therefore passed. The email chain is forwarded to an association email account maintained for permanent access and to which the association board members and property manager have access.
Result: The proposal was properly voted on and approved by the board. The requirements of the law are satisfied since the email chain is kept as part of the permanent records of the association. An association may instead save by some other method such as in PDF format and saving to the association website or online storage service (such as Dropbox), or by printing out and saving.
Example 2: Same facts as Example 1, except text messaging is used instead of email and the text message chain is not forwarded to an association email account and steps are not otherwise taken to preserve the record. A month later, the board president bought a new phone and didn't carry over text messages from her old phone to her new phone. The second board member, Michael Knight, cannot find the text messages.
Result: Although the proposal was properly voted on and approved by the board, the board has violated the law by failing to preserve a permanent record of the action taken without a meeting.
*Keeping a chain of texts can be more difficult than email due to the more ephemeral nature of text messages. Thus extra care should be exercised. Screenshots of the entire text chain should be made and kept as part of the association's records, or some other method used to ensure a complete record is preserved by the association permanently.
(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)