Most of our nonprofit clients implement careful policies and procedures to protect their assets, maximize their impact and comply with the law; however, even the most thoughtful organization sometimes fails to keep a clear written record of its deliberations. Unfortunately, organizations that are thoughtful in their decision-making often don’t get the full benefit of their actions because they fail to show their work. That is where minutes and consents come in.
A. Minutes of Meetings. Board and committee meeting minutes are an important form of record keeping for all organizations. Minutes serve as the official (and legal) record of the meeting of the board of directors. They are presumed to be correct and are considered legal evidence of the facts they report. Thus, they should consist of a clear, accurate, and complete report of all business transacted and should be worded in a manner that is simple and unambiguous.
Because minutes hold such legal importance, it is necessary to make certain that every organization has a policy of recording minutes in such a way that ensures that the minutes accurately reflect the wishes and actions of the board of directors; however, all language which might be used to the company’s disadvantage in the future should be eliminated. Minutes should be worded in a way that is clear and concise and accurately conveys the meaning of the action taken. They should contain enough detail to make them useful if they are ever needed for reference or used as evidence that an action was taken or that the directors fulfilled their fiduciary duties. While it is not necessary (nor recommended) to record everything that was said at a meeting of the board, some things that should always be recorded are:
- the date and time of the meeting,
- whether the meeting is a special or regular meeting,
- whether notice was given or a waiver of notice signed by all directors,
- names of directors in attendance and directors not in attendance,
- names of other guests in attendance,
- whether a quorum was established,
- any departures and re-entries of attendees,
- any board actions (e.g., approvals, delegations of authority, directives), and
- whether any directors abstained from voting.
In addition to the duties listed above, the person charged with taking minutes should include in the minutes:
- alternatives considered for important decisions,
- a note of what board action was taken (e.g., “RESOLVED,” “action”),
- a summary of key points from any reports given to the board,
- recusals from discussions and abstentions from voting,
- votes that were against a motion, and
- actions items.
Also, the person keeping the minutes should know and record what vote is required by the bylaws for certain actions and indicate if such a vote was reached. If no vote is taken on a certain question and the consensus of the directors is obtained in an informal manner, it is sufficient to note “it was the consensus that,” “each director present expressed his/her approval of,” or “doubt was expressed as to,” and to follow with a statement of the facts. This places on record evidence of what was agreed to at the meeting.
When taking minutes, there are a few mistakes that are commonly made that should be avoided. Some of these mistakes include:
- failing to document a quorum was present,
- failing to document or provide a clear description about a board action taken,
- drafting a transcript of everything said at the meeting including information that might be harmful to the organization if read by someone with access to the minutes or by a court reviewing a board action,
- drafting and distributing minutes to directors after a lengthy period of time has passed,
- waiting to approve minutes from past meetings until a substantial period of time has passed decreasing the likelihood that mistakes will be caught and corrected, and
- failing to maintain a reasonable document management system resulting in the loss of minutes from past meetings.
Because minutes are considered to be a true and accurate record of meetings of the board and can be used as legal evidence of actions of the board, it is very important to keep minutes that are clear, free of harmful and excessive information, and signed and verified in a timely manner to ensure that the minutes always reflect the true intentions of the board.
B. Resolutions. A resolution is an action taken by the board of directors which applies to a single act (as opposed to bylaws which are the rules that govern an organization and regulate its affairs). If a resolution conflicts with a bylaw, the bylaw prevails unless amended or repealed (a process which can be done through a resolution). Although resolutions are not required by law, they are an important action for boards to take. Resolutions are the best way to revoke action taken by a previous resolution. If a resolution is clear and concise, it can minimize future misunderstandings between board members and the organization as a whole. A resolution is proposed by a motion, made and seconded, that the resolution be adopted.
There is no formal rule to govern when a resolution should be made; however, there are some circumstances when a resolution is the most appropriate course of action. These include:
- if the matter is one that the statute, charter, or bylaws require to be covered by a resolution;
- if a certificate showing that the authority granted by directors to perform a certain act is required to be filed, or likely to be required at some future time;
- if the matter regulates the management of the corporation and is meant to be permanent until changed;
- if the matter is one of importance; if the matter is one that is likely to be referred to from time to time; and
- if the matter consists of amendments to the charter or bylaws.
Generally, it is in the best interest of the organization to draft a formal resolution if the matter is one of importance in order to ensure that the wishes of the board are carried out.
The secretary of the meeting typically drafts resolutions. Key resolutions are typically drafted in advance of the meeting in order clarify the subject matter and facilitate discussion. Often a draft of the resolution is given to the officer who originated the proposition to ensure the resolution reflects the wishes of those who proposed it.
One exception is resolutions which involve legal technicalities; these resolutions are generally drafted or reviewed by legal counsel. It is also common practice to provide a copy of the resolution to the chairman or president of the organization prior to the meeting so for review. In cases where new topics are brought up in a meeting and no resolution has been drafted, it is acceptable for the secretary to immediately write out the resolution in full and submit it to the chairman for approval, or write out the resolution after the meeting.
When recording a resolution in the minutes, the exact wording of the resolution, the names of proposers and seconders, and the names of those voting in favor of or contrary to the resolution should be recorded.
C. Consent Resolution. A consent resolution is a written action without a meeting that is signed by all directors. It is not effective unless all the directors unanimously agree to the action and sign it. Some states, including Arizona, permit electronic signatures making it possible to conduct business via electronic mail so long as the resolutions are signed by each and every director. The consent resolution can also provide for signatures to be made in counterparts so that the directors don’t have to coordinate signing the same piece of paper. If counterpart signatures are permitted, the various signature pages can simply be attached to the consent resolution.
Ellis Carter is a nonprofit lawyer licensed to practice in Washington and Arizona. Ellis advises tax-exempt clients on federal tax matters nationwide.