Q: What methods may a public benefit corporation in California use for member voting? Is in person plus mail in ok?
We need a quorum of 50% of members to pass a resolution. We may not have 50% available to vote in person. Is an email ballot to be mailed in and opened during the meeting sufficient?
The law allows for voting by mail or email, but the question of whether a particular organization can take advantage of those methods depends on certain facts.
To start with "unless prohibited in the articles or bylaws, any action which may be taken at any regular or special meeting of members may be taken without a meeting if the corporation distributes a written ballot to every member entitled to vote on the matter." (Corporations Code Section 5517). That ballot "shall set forth the proposed action, provide an opportunity to specify approval or disapproval of any proposal, and provide a reasonable time within which to return the ballot to the corporation." Plus, the ballots can be sent and received electronically "unless otherwise provided by the articles or bylaws and if approved by the board of directors." So the organization can do a written ballot instead of an in-person meeting, if approved by the board and as long as the bylaws don't prohibit that.
If an organization wants to have an in-person meeting and to allow emailed ballots, the law says that "members not physically present in person" may "participate ... be deemed present ... and vote" at a membership meeting "by electronic transmission" or "by electronic video screen communication." (Corporations Code Section 5510). However, electronic voting is only allowed "unless prohibited by the bylaws of the corporation" and may be "authorized by the board of directors in its sole discretion." (Corporations Code Section 5510). So if a nonprofit's bylaws explicitly rule out electronic voting, you cannot use it. And, assuming that the bylaws don't prohibit it, the board of directors must make the decision to use the electronic processes to supplement the in-person voting.
There are some other requirements that an organization will want to make sure that they follow. For example, a member has to have agreed to receive electronic communications from the organization and the organization has to have given certain notices and warnings to the member. (Corporations Code Section 20). In addition, the organization is required to put in place "reasonable measures to verify that the sender" is in fact the member entitled to vote, and a system is required to keep records of the materials sent to and from the member. (Corporations Code Section 21). In addition, if there is an in-person portion, the people who choose to show up in person must be given "a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with those proceedings." (Corporations Code Section 5510(f)).
So, if an organization's board of directors wants to, and if it's not prohibited by the bylaws, the nonprofit can use mailed-in or emailed-in ballots, as long as they follow certain procedures.
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