Key point 6-06.03. Church boards generally can act only in a meeting that is duly called pursuant to the church’s governing documents. Many state nonprofit corporation laws permit church boards to act by written consent, or by conference telephone call.
The general authority to manage church affairs generally is vested in the directors or trustees, and their acts are binding on the corporation only when done as a board at a lawful meeting. Neither a minority nor a majority of the board has the authority to meet privately and take action binding upon the corporation not in compliance with the procedural requirements set forth in the church’s governing documents. The reason for this rule has been stated as follows: “The law believes that the greatest wisdom results from conference and exchange of individual views, and it is for this reason that the law requires the united wisdom of a majority of the several members of the board in determining the business of the corporation.”194 Trethewey v. Green River Gorge, 136 P.2d 999, 1012 (Wash. 1943).
This rule has exceptions. For example, some state nonprofit corporation laws permit directors to take action without a meeting if they all submit written consents to a proposed action.195 Section 8.22 of the Revised Model Nonprofit Corporation Act permits such action unless the articles or bylaws provide otherwise.And some states permit directors to conduct meetings by conference telephone call. The entire board of directors of course can take action at a duly convened meeting to ratify an action taken by a minority or majority of the board acting separately and not in a legal meeting.
Corporate bylaws ordinarily specify that regular meetings of the directors or trustees shall occur at specified times and at a specified location. The designation in the bylaws of the time and place for regular meetings of the board generally will be considered sufficient notice of such meetings. In addition, special meetings may be convened by those officers or directors who are authorized by the bylaws to do so. The bylaws ordinarily require that notice of a special meeting be communicated to all directors at a prescribed interval before the meeting. The notice also must be in the form prescribed by the bylaws.
CAN A CHURCH BOARD MEET IN SECRET WITHOUT THE PASTOR?
Can a church board meet without informing the senior pastor and transact business on behalf of the church that is not an emergency? Assume that the pastor is available, and that the church bylaws specify that the pastor is the president of the corporation and chairperson of the board.
The answer to this question will depend on the wording of a church’s governing documents (i.e., constitution, bylaws). If the governing documents do not address this issue, then refer to the state nonprofit corporation law under which the church is incorporated. To illustrate, the nonprofit corporation law of one state specifies: “Notice of the place, if any, and time of each meeting of the directors shall be given to each director either by personal delivery or by mail, by overnight delivery service, or by means of authorized communications equipment at least two days before the meeting. That notice need not specify the purposes of the meeting.”
This is a fairly common provision in state nonprofit corporation laws. According to this language, a group of board members could not hold a secret meeting without giving notice to the pastor. This assumes that (1) the church is incorporated under a state nonprofit corporation law containing such a provision, and (2) the pastor is a member of the board. Any action taken at such a meeting would be nullity.
A meeting of the directors or trustees will not be legal unless a quorum is present. A quorum refers to that number or percentage of the total authorized number of directors that must be present in order for the board to transact business. The bylaws typically state the quorum requirements. In the absence of a bylaw provision, the number of directors constituting a quorum ordinarily will be determined by state nonprofit corporation law (for incorporated churches). In many states, a majority of the board will constitute a quorum in the absence of a bylaw or statutory provision to the contrary. Some nonprofit corporation laws specify that a quorum may not consist of less than a certain number. If vacancies in the board reduce the number of directors to less than a quorum, some statutes permit the board to meet for the purpose of filling vacancies.196 MODEL NONPROFIT CORPORATION ACT § 19.
Board meetings are often informal. The president of the corporation generally presides at such meetings, and the secretary keeps minutes. Actions of the board may be in the form of a resolution, although this is not necessary since it has been held that actions taken by the board and recorded in the minutes constitute corporate actions as effectively as a formal resolution.197 FLETCHER CYC. CORP. § 419 (perm. ed. 2008).
If a board meeting does not comply with the requirements in the corporation’s bylaws or in state law, it will be invalid, and its actions will have no legal effect. Thus, meetings will be invalid and ineffective if notice requirements are not satisfied, unless all of the directors waive the defect in notice either verbally or implicitly by their attendance without objection at the meeting. Meetings will also be invalid if quorum requirements are not satisfied, and an action taken by the board even at a duly called meeting will be invalid if it was adopted by less than the required number of votes.
The 11th edition of Robert’s Rules of Order Newly Revised provides that business can only be conducted in a properly called meeting, defined as “a single official gathering of members in one room or area to transaction business.” Robert’s Rules of Order Newly Revised clarifies that a church’s bylaws can authorize the conduct of official meetings of members in electronic meetings “at which, rather than all participating members being physically present in one room or area as in traditional (face-to-face) meetings, some or all of them communicate with the others through electronic means such as the Internet or by telephone.” A meeting conducted by electronic means “does not lose its character as a deliberative assembly so long as the meetings provide, at a minimum, conditions of opportunity for simultaneous aural communications among all participating members equivalent to those of meetings held in one room or area. Under such conditions, an electronic meeting that is properly authorized by the bylaws is treated as though it were a meeting at which all the members who are participating are actually present.”
Key point. Membership meetings in most churches are too large to be conducted by electronic means. As a result, the option of electronic meetings will have the most relevance to board and committee meetings consisting of a smaller number of participants.
Robert’s Rules of Order Newly Revised stresses that electronic meetings are allowed only if authorized by an organization’s bylaws. This statement is incomplete, since it omits any reference to applicable state nonprofit corporation law. Incorporated churches can provide for electronic meetings in their bylaws only if authorized by the applicable nonprofit corporation statute. In most states, nonprofit corporation laws have been revised in recent years to allow boards to meet electronically. For example, a typical statute provides:
Subject to the provisions of this code and the certificate of formation and bylaws of a corporation, a meeting of the members of a corporation, the board of directors of a corporation, or any committee designated by the board of directors of a corporation may be held by means of a remote electronic communications system, including videoconferencing technology or the Internet, only if:
(1) each person entitled to participate in the meeting consents to the meeting being held by means of that system; and
(2) the system provides access to the meeting in a manner or using a method by which each person participating in the meeting can communicate concurrently with each other participant.
The Model Nonprofit Corporation Act, which has been adopted by several states, provides:
Unless the articles or bylaws provide otherwise, a board may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.
There is some variation in state nonprofit corporation laws regarding the conduct of electronic meetings. Church leaders should be familiar with the wording of their state nonprofit corporation law’s treatment of electronic meetings before amending the church’s bylaws to provide for such meetings.
Robert’s Rules of Order Newly Revised calls attention to an important distinction between videoconference, audio conference, and teleconference: “Various provisions for electronic meetings are possible. … Thus, if the bylaws provide for meeting by videoconference (but not merely teleconference or audioconference) the meeting must be conducted by a technology that allows all participating members to see each other, as well as to hear each other, at the same time.”
Key point. Under most nonprofit corporation laws, “some or all” of the board members can participate in a meeting by means of electronic devices. Under such a provision, an entire meeting may be conducted by means of electronic devices, or, the meeting may be convened in one place but one or more members participate by means of an electronic device.
Robert’s Rules of Order Newly Revised clarifies that notice of regular meetings of organizations or boards may be sent by electronic communication if a recipient has agreed to receive this form of notice. Robert’s Rules of Order Newly Revised states: “When notice is required to be sent, unless a different standard is specified that requirement is met if written notice is sent to each member either: (a) by postal mail to the member’s last known address; or (b) by a form of electronic communication, such as email or fax, by which the member has agreed to receive notice.”
Key point. Church bylaws often specify that notice of a regular or annual meeting of church members is given in one or more worship services preceding the date of the meeting. Electronic notice in such circumstances would not be allowed. However, it would be feasible for church bylaws to authorize notice of board meetings to be given in this manner.
unanimous written consent
Some church boards occasionally take action without a meeting by means of unanimous written consent, usually due to an emergency for which immediate action is needed. While convenient, are such actions legally sound?
Many states have adopted the “Model Nonprofit Corporation Act” or the “Revised Nonprofit Corporation Act,” and this has provided considerable uniformity on matters of nonprofit corporation law. The Revised Model Nonprofit Corporation Act (1987 and 2008 editions) provide:
Section 8.21. Action Without Meeting.
(a) Unless the articles or bylaws provide otherwise, action required or permitted by this Act to be taken at a board of directors’ meeting may be taken without a meeting if the action is taken by all members of the board. The action must be evidenced by one or more written consents describing the action taken, signed by each director, and included in the minutes filed with the corporate records reflecting the action taken.
(b) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.
(c) A consent signed under this section has the effect of a meeting vote and may be described as such in any document.
Note that this provision will not necessarily apply to a church, since it has not been enacted by some states, and some churches have chosen not to incorporate. In such cases, a church should address the issue of actions by common consent it its bylaws. Here are some samples that can be adapted to church use:
- Any action required or permitted to be taken by the Board of Trustees at a meeting may be taken without a meeting by unanimous consent of all Trustees represented by one or more written consents describing the action so taken, signed by each Trustee, and filed with the University Secretary and included in the corporate minutes or filed with the corporate records. For the purpose of this [section] “written consents” shall include consents by members of the Board of Trustees in electronic form and delivered by electronic mail.
- Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting provided that a majority of the Directors consent thereto in writing or by electronic transmission. Any such action shall only be effective upon a vote either in writing or by electronic transmission of a majority of the Directors.
- Any action required or permitted to be taken at a meeting of the Corporation or any committee of the Corporation may be taken without a meeting if all the members entitled to vote on such action consent thereto in writing and the written consents are filed with records of the Corporation.