Q: Can the board of directors of a Florida 617 Not for Profit Corporation vote via email or do they need unanimous consent?
The Board of Directors held many properly noticed meetings regarding the creation of Covenants, Conditions and Restrictions, but the Chairman decided to hold a vote via email instead of properly noticing and holding a meeting to pass what was supposed to be the FINAL document. Most of the Board voted YES, but there was one NO vote and one Board member didn't vote.
Is this a legal vote under Chapter 617.0821 Florida Statutes - Action by directors without a meeting or did the Board need to re-vote at a properly noticed meeting, because they didn't have unanimous consent.
A:
Unfortunately, the email vote is not valid under Florida's nonprofit corporations act because there was not unanimous consent.
Florida allows board action to be taken in three ways: (a) a physical (in person) meeting, (b) a meeting by electronic communication "through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting,” unless the articles of incorporation or bylaws provide otherwise, or (c) an action by unanimous written consent. Although some states have modified their nonprofit corporation laws to permit voting by email, Florida has not. Yet.
An email vote can satisfy the unanimous written consent rule, but because your directors did not obtain unanimity the organization most likely needs to call an in-person (or online) board meeting to ratify the prior election.
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