(1) Unless otherwise provided by the bylaws,fn1 any action that may be taken at any annual, regular, or special meeting of members may be taken without a meeting if the nonprofit corporation delivers a written ballot to every member entitled to vote on the matter.
(2) A written ballot described in Subsection (1) shall:
(a) set forth each proposed action; and
(b) provide an opportunity to vote for or against each proposed action.
(3) (a) Approval by written ballot pursuant to this section shall be valid only when:
(i) the time, as determined under Subsection (8), by which all ballots must be received by the nonprofit corporation has passed so that a quorum can be determined; and
(ii) the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot.
(b) Unless otherwise provided in this chapter or in accordance with Section 16-6a-716, for purposes of taking action by written ballot the number of votes cast by written ballot pursuant to this section constitute a quorum for action on the matter.
(4) All solicitations for votes by written ballot shall:
(a) indicate the number of responses needed to meet the quorum requirements;
(b) state the percentage of approvals necessary to approve each matter other than election of directors;fn2
(c) specify the time by which a ballot must be received by the nonprofit corporation in order to be counted; and
(d) be accompanied by written information sufficient to permit each person casting the ballot to reach an informed decision on the matter.
(5) Unless otherwise provided by the bylaws, a written ballot may not be revoked.
(6) Action taken under this section has the same effect as action taken at a meeting of members and may be described as such in any document.
(7) Unless otherwise provided by the bylaws, a written ballot delivered to every member entitled to vote on the matter or matters therein, as described in this section, may also be used in connection with any annual, regular, or special meeting of members, thereby allowing members the choice of either voting in person or by written ballot delivered by a member to the nonprofit corporation in lieu of attendance at such meeting. Any written ballot shall comply with the requirements of Subsection (2) and shall be counted equally with the votes of members in attendance at any meeting for every purpose, including satisfaction of a quorum requirement.
(8) (a) Members shall be provided a fair and reasonable amount of time before the day on which the nonprofit corporation must receive ballots.
(b) An amount of time is considered to be fair and reasonable if:
(i) members are given at least 15 days from the day on which the notice is mailed, if the notice is mailed by first-class or registered mail;
(ii) members are given at least 30 days from the day on which the notice is mailed, if the notice is mailed by other than first-class or registered mail; or
(iii) considering all the circumstances, the amount of time is otherwise reasonable.
Enacted 2000, ch. 300, § 66, eff. April 30, 2001.
Amended: 2001, ch. 127, § 5, eff. April 30, 2001; 2001, 1st Sp. Sess., ch. 13, § 1, eff. July 5, 2001; 2007, ch. 315, § 3, eff. April 30, 2007; 2010, ch. 378, § 243, eff. May 11, 2010.
FN 1. The qualifying phrase here, “unless otherwise provided by the bylaws," means the bylaws must specifically state that a vote may not be held without a meeting, or something similar, and if the bylaws do not state that, then any vote that may be held at a meeting can be held without a meeting by written ballot.
It is very common language in bylaws to state the members may do X if members holding a majority of all voting rights vote to approve X at a meeting held for that purpose. Does such language require that X may be voted on only at a meeting? No. That language does not sufficiently "provide otherwise." That is, it does not provide something that directly contradicts the statute's express authorization for any vote that can be held at a meeting to be held without a meeting.
The statute so clearly and specifically authorizes any vote that may be held at a meeting to be held without a meeting that in order for the bylaws to "provide otherwise," the bylaws need to be equally specific. For instance, if a set of bylaws state, "these bylaws may only be amended at a meeting where a vote of a majority of the total votes of the association vote in favor of the amendment," the word "only" clearly and specifically provides that a vote may not be held without a meeting and thus a meeting is required. But simply authorizing a vote for some specific action to occur at a meeting does not sufficiently "provide otherwise" and that action may be voted on without a meeting by written ballot under this section. Thus, if the word "only" was absent from the above language, no meeting is required.
FN 2. The exception to the requirement, namely that the percentage of approvals necessary for election of directors does not need to be stated, exists here because election of directors is by plurality vote (the candidates with the most votes, win), as provided in subsection 16-6a-717(3) (that is, unless otherwise provided in the bylaws) and thus there is no "percentage of approvals necessary" to elect a director.