In 2020, the United States experienced a pandemic that shut down the country and limited physical gatherings. These lockdowns prohibited in-person meetings, including religious organization’s board and committee meetings. Churches with congregational governance could not conduct an in-person business meeting. Suddenly, the religious organization could not follow its usual governance model.
Farsighted religious organizations planned for this pandemic by including the following in their governing documents: 1) they authorized “electronic meetings”; 2) assuming the state nonprofit corporation law allows for electronic meetings, the bylaws included conference calls, video conferencing, electronic message boards, and electronic voting via the internet.
Two key emergency provisions
Churches that have not already done so would be wise to add the following two provisions to their own bylaws, to the extent allowed by their state’s law.
Meeting by electronic means
The corporation may hold a meeting by any electronic medium in which all persons participating in the meeting can speak and hear each other. The notice of a meeting by electronic means must state the meeting will be held by electronic means (including the directions to participate) and all other matters required to be included in the notice. Participation of a person in an electronic meeting constitutes the presence of that person at the meeting.
Action by consent without meeting
Any action required or permitted to be taken by the members, board of directors or committees may be taken without a meeting and with the same force and effect as an in-person meeting. Members, members of the board of directors, and committees must return the consents to the secretary. Such consent may be given individually or collectively to the secretary in writing, fax, via a secure website, or electronic mail. The action is adopted if the requisite number of consents is submitted to the secretary to approve the action, assuming all members, all directors, or committee members voted.
Emergency authorization by state statute
Frequently, state nonprofit corporation statutes authorize the religious organization to include provisions in the bylaws that become effective in an emergency. The state law will define when an emergency exists and what actions may be authorized during the emergency. A disaster declared by the President frequently allows the emergency provisions to become effective and remain effective as long as the emergency exists. Here is a sample under Texas law:
Emergency Powers. An “emergency” exists for this section if the Board of Directors’ quorum cannot readily be obtained because of some catastrophic event. If an emergency exists, the Board of Directors may: (i) modify lines of succession to accommodate the incapacity of any Director, officer, employee or agent; and (ii) relocate the principal office, designate alternative principal offices or regional office, or authorize officers to do so. During an emergency, a notice of a meeting of the Board of Directors only needs to be given to those Directors whom it is practicable, including Internet website, email, publication, or radio. One or more Corporation officers present at a meeting of the Board of Directors may be deemed Directors for the meeting, in order of rank and within the same rank and order of seniority, as necessary to achieve a quorum. Corporate action taken in good faith during an emergency binds the Corporation and may not be the basis for imposing liability on any Director, officer, employee, or agent of the Corporation on the ground that the action was not authorized. The Board of Directors may also adopt emergency bylaws, subject to amendments or repeal by the full Board of Directors, which may include provisions necessary for managing the Corporation during an emergency including; (i) procedures for calling a meeting of the Board of Directors; (ii) quorum requirements for the meeting; and (iii) designation of additional or substitute Directors. The emergency bylaws shall remain in effect during the emergency and shall be revoked after the Board of Directors has deemed that the emergency has ended.
Check to see if your state law contains such a statute.
Adopting the two provisions
Churches will need to research whether these provisions are authorized by their state’s nonprofit corporation statute. These provisions may need to be modified to fit the state law requirements. If authorized, churches will need to amend their bylaws in the manner prescribed by the existing bylaws or state nonprofit corporation statute.
For congregationally lead churches, the members usually must approve bylaws amendments in a properly noticed and called in-person meeting. For board governed churches without members, the board of directors must approve the bylaws amendments in a properly noticed and called in-person meeting.
In many states, a majority vote is required to amend the bylaws but some state laws and bylaws require a two-thirds vote to approve the bylaws amendments. If the government authorities are prohibiting in-person meetings, then the amendments will have to wait until an in-person meeting can be convened.
