action without meeting - members
Taking an action without a meeting is conducting a vote without holding a meeting, such as by return ballot or by petition. If the vote passes, then the action (the subject of the vote) was taken without a meeting. In today's world, taking action without a meeting is an important and often-used tool. For votes by the members, it allows all members to participate even when the various members' schedules or locations don't permit attendance at a meeting.
A meeting is a gathering of the members in a way that the members can communicate live and in real time. Actions may be taken without a meeting (such as by mail-in or email ballot). However, specific requirements must be followed as dictated mostly by the Nonprofit Act.
Two Methods to Take Action without Meeting
The members of the association may take action without a meeting in either of two ways:
- Written Ballot. By giving notice and a written ballot to all members under § 16-6a-709 "Action by written ballot."
- Written Consents Without Notice. Without first giving notice to all members, by a petition-style action where the required number of members must sign something in favor of the action. See § 16-6a-707 "Action without meeting."
1. Action by Written Ballot.
Any vote or action that can be taken at a meeting can be taken without a meeting by a written ballot process, unless the bylaws specifically require that a vote or action may not be taken without a meeting. (See footnote 1 to § 16-6a-709 for discussion on what language bylaws must contain to require a meeting).
The association must deliver a written ballot to each member entitled to vote that:
- describes the proposed action;
- allows a member to vote for or against the action.
Additionally, the ballot or an accompanying document must:
- state how many responses are needed to: (i) meet the quorum requirement, and (ii) approve the proposed action;
- provide the deadline for return of ballots, and
- contain information that is sufficient to allow a member to reach an informed decision on the matter.
Votes by Email and Other Electronic Methods
The statute for action by written ballot doesn't specifically address electronic methods, unlike the statutes on proxies and on action without meeting and without notice. But, since Utah law allows the use of electronic methods to transmit, receive and retain signed writings generally, written ballots may be delivered and returned electronically. Specifically, Utah law states, "A record or signature may not be denied legal effect or enforceability solely because it is in electronic form" and "If a law requires a signature, an electronic signature satisfies the law.” Section 16-6a-709 does not require a signature, but it is recommended that an association require one so that the association can rely on the presumption of validity and protection under § 16-6a-713(1) and (4).
Example 1. In conducting a vote by written ballot without a meeting, an association attaches the ballot as a PDF to an email delivered to each member. A member prints the PDF, fills it out and signs it, then takes a picture of it. The picture is in focus, of adequate quality, and the writing is clear and legible. The member emails the picture back to the association. Another member fills out and signs the PDF electronically - without printing it - using a PDF app on the member's phone, and emails it back to the association.
Result: The association may rely on both ballots as valid and effective.
Example 2. In conducting a vote by written ballot without a meeting, an association includes the ballot in the body of an email sent to each member. The email states the email ballot may be signed by typing the member's name, and that by typing a member's name, the person is declaring under penalty of perjury that they are the person whose name they have typed. A member replies to the email from the account it was sent to. In the reply, the member filled out the ballot and typed the members name.
Result: The association may rely on the email ballot as valid and effective.
Caveat Regarding Providing Notice Electronically. In a vote by ballot without a meeting where the ballot (or accompanying email or document) serves as notice to all the members of the vote, any applicable requirements for notice must also be met. Utah law requires that for an association to be able to send notice to its members electronically, the governing documents must authorize it. Thus, if electronic notice isn't authorized in the governing documents, an association should adopt a rule authorizing electronic notice before conducting a vote by electronic methods.
The law doesn't require a specific time period between delivery of a ballot and the deadline for ballots, except to require the amount of time to be fair and reasonable, considering all the circumstances. The law provides a "safe harbor," however. Providing at least 15 days from the day on which the notice is mailed, if the notice is mailed by first-class or registered mail, is considered fair and reasonable.
Revoking a Written Ballot
A written ballot may not be revoked (unless otherwise provided in the bylaws). See § 16-6a-709(5).
In Combination with MeetingThe written ballot process may also be used in combination with any meeting, allowing members the choice of either voting in person or by written ballot in lieu of attendance. Many associations find this useful. For instance, for a vote on an amendment to the CC&Rs, an association might deliver written ballots 20 or 30 days before the meeting and set the deadline for ballots one to two weeks after the meeting. That way, members can attend but don't need to, discussion of the vote can occur at the meeting, and members can cast their vote at the meeting if they prefer. The extra time after the meeting gives the board the opportunity, if the ballot response is low, to contact members and encourage them to vote.
Record Required to be Kept
(2) a teller's report (a tally of the votes received for and against the proposed action) signed by the secretary or other person designated to count the votes,
(3) a record or statement of when the notice and written ballots were sent to the members,
(4) a statement of the number of members eligible to vote, and
(5) a declaration (statement) by the president of the result of the vote.
Unless otherwise provided by the bylaws, after fixing a record date for determining the members entitled to take action by written ballot, an incorporated association must prepare an alphabetical list of the names of all its members, including addresses and number of votes each member is allocated, who are entitled to vote in the action by written ballot. See § 16-6a-710.
2. Action by Written Consent Without Notice.
Action without a meeting by written ballot is by far the most used and recommended method. But, when a situation warrants it, an association may take an action without first giving notice or delivering anything to all the members, if a petition or other written consent form is taken around to members until the number of members sign it that would be necessary to take the action at a meeting at which all the members were present and voted. Then, a notice describing the action must be given to the remaining members at least 10 days before the consummation of the action or event that was approved by the members.
*However, an association formed prior to April 30, 2001, must receive unanimous consent from the members to take an action by written consent without prior notice if relying on the statute instead of the governing documents, making this option unrealistic and impractical for many associations. If the declaration, articles or bylaws authorize taking action by written consent without prior notice by fewer than all of the members, then the association may use that provision instead of the statute.
A member may revoke the member's consent in a signed writing describing the action and received by the association before the action is effective.
The association must receive all of the consents within a 60-day period.
A consent form may be delivered by an electronic transmission, in which case, it is considered to be written, signed and dated if it is delivered with information from which the association can determine that it was sent by the member and the date it was sent. The date sent is considered the date it was signed.
Record Required to be Kept
Again, an association is required to keep a permanent record of the actions the members take without a meeting. The law doesn't specify what constitutes a "record" of an action by written consent without notice, but at a minimum, the association should keep: (1) a copy of the consent form (including the explanation of the action being taken and consented to), (2) a teller's report or tally of the consents received for the proposed action, signed by the secretary or other person designated to count the votes, (3) a statement of the number of members eligible to vote and the number needed for the action to pass, and (4) a declaration by the president of the result. 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.
Keep the Ballots?
An association is not required to keep all of the returned ballots or consents. An association is required to keep a record of the action, as discussed above, but as Robert's Rules of Order points out, "after completion of an election or balloting, if there is no possibility that the assembly may order a recount (which requires a majority vote unless a special rule permits a lesser number to do so), the ballots can be ordered to be destroyed or to be filed for a certain length of time with the secretary (such as one month) before being destroyed." Robert's Rules of Order, 10th ed., pg. 404.
(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)