If you live in the United States, you may remember there was much ado when members of the House of Representatives had to return to Washington D.C. to approve a coronavirus relief package because the U.S. Constitution requires in-person voting. Any sort of vote conducted in another manner was vulnerable to a challenge.
Similarly, if the bylaws of your non-profit don’t allow for virtual meetings or voting by email or if in-person voting is required by your state, then any decisions or even conversations about organizational business conducted over these media may be vulnerable to challenge or contravene open meeting laws.
I recently wrote a post to help people research what the rules in their states say about non-profit meetings. That would be a good place to start research about the laws in your state. Keep in mind that even if the law doesn’t explicitly say that organizations have to meet in person, if the laws don’t say organizations can conduct meetings and businesses electronically, that may still present a problem.
For organizations that perform governmental or quasi-governmental services whose meetings are required to be open to the public, you definitely want to consult a lawyer to find out what you need to do to conform to the law if you conduct meetings online. The procedures employed are likely to be just as important as whether virtual meetings are legal in the first place.
If your bylaws don’t allow you to conduct business electronically, you will need to have an in-person meeting to amend those bylaws. Even with the need for social distancing during an epidemic, this can probably be as simple as providing proper notice to everyone eligible to attend a meeting, rolling a portable public address system out to the edge of a parking lot, have people fill every other parking spot and roll down their windows. Announce the opening of the meeting, say there is a motion on the table to adjust the bylaw to read X, have people honk if they agree, then honk if they dissent. If there is any discussion, you may need to let people make their way to the microphone at intervals and be sure to wipe it down after every use. Then close the meeting and tell everyone you will see them online next Thursday. (Check with local authorities to learn if assembling in a parking lot in this manner is permitted.)
If your bylaws require multiple readings at monthly intervals in order to make changes, it may be easier to wait to vote on the change if you think restrictions on public meetings will be relaxed sooner than later.
I would advise writing bylaws that online only meetings are permissible only during times of emergency when in-person assembly isn’t permitted or advisable. Not everyone has good internet access so conducting business online as a regular practice could limit participation which might give rise to challenges. On the other hand, changing bylaws and meeting procedures to allow participation both in-person and online could open participation to people who don’t have access to good transportation options.
There are a number of things to keep in mind if you are conducting organizational meetings online during the Covid-19 outbreak. If your meetings need to be open to the public or there is an expectation that they be open, you will need to make the link to the meeting openly available. Requiring people to contact someone to get the link could be viewed as much an impediment as a locked door they need to knock on to gain admittance.
You may have heard that making links widely available has provided ill-intentioned individuals the opportunity to harass meeting participants. There are articles written about how to mitigate those problems that I suggest you read before running a meeting.
Even taking all suggested steps, conducting organizational business online is entirely new territory. I fully expect there will be legal challenges based on issues of process and access if online meetings become a regular practice. Likewise, I expect laws and definitions of open meetings to change to allow for them to be conducted online against a similar future emergency.
The most important thing is to be thoughtful and reflective about the experience meeting attendees are having. The very nature of online meetings make them vulnerable to accusations of censorship or unfair limitation of access. Take for example the fact that as soon as you arrive, you find yourself muted out of necessity. If you have attended even one online conference you know that even if a participant has great personal discipline about making noise, everyone and everything else in near proximity doesn’t. If you use the waiting room feature on services like Zoom and admit people individually, some people may decide they are being intentionally excluded or delayed in favor of voices supporting the meeting organizer.
Perception definitely matters for online meetings, especially for those who are not experienced or comfortable with the process. In the last couple weeks I have participated in meetings where people continued to post questions in the chat box rather than Q&A box despite multiple requests that they post in the latter. Apparently only about 8-10 questions were visible to participants in the Q&A box but there were more than 400 visible to the meeting organizers. Between those two factors, there were a lot of complaints expressed about the quality of the meeting as time went on. Keep in mind, this was an informational meeting rather than one where people needed to vote and provide feedback about policy decisions.
Some good practices I have seen managed expectations in ways that simulated an in-person meeting. In one case, someone added bracketed notes to questions saying it was answered in the content of the presentation. I don’t know how many moderators they must have had that they were able to scroll through the questions make those notations in real time as the presentation addressed them.
I also attended a meeting where they had people use the “raise hand” button and then someone assigned an order in the chat box while the presentation was going on. (Bob #1, June #2, Steve #3). This simulated being on line to speak at the microphone at a meeting.
It may be worthwhile to explore different meeting services to discover the ones with features that best suit your meetings. I suspect these online meeting tools are being used by a broader number of people and in more diverse ways than the creators envisioned. It would not be surprising if we saw a major revamp of these tools to include new features as a result.
Disclaimer: What is a blog post about a legal topic without a disclaimer? This is not legal advice. You should not be getting your legal advice from a blog post. The purpose of this post is to give you things to think about before taking action. Speak to a lawyer about specifics.