Boards, Email and Texting – It’s Time to Establish Norms
Board work continues to evolve. Thirty years ago board norms were different. Boards met monthly. They used a strong executive committee that met between board meetings to manage the executive director’s actions – EDs made few decisions without the board’s permission. Only on rare occasions did the board or executive committee meet by phone. There were no faxes – board packets were sent by mail.
Today things are different. Boards meet less often, typically four to six times a year. As more research suggested that executive committees disengaged boards, fewer nonprofits have a strong executive committee. Executive directors are often referred to as President/CEO and are expected to run the organization, informed by the board’s policy and direction, but using their own judgment. And especially in Alaska, telephonic meetings, especially for emergencies, are common. Already faxing is obsolete.
There are many other reasons for these changes. Boards are less willing to meet as often and, with the trend to delegate more authority to the staff leader, don’t need to meet as often. Bylaws permitting, telephonic meetings are allowed and even necessary when working in a state like Alaska. However, some emerging norms are not beneficial to good governance. Most involve the use of email or text communication.
Conducting the board’s business, (setting policy), via email is not legal in Alaska and most other states. The one exception is a vote using unanimous consent, meaning that every member of the board waives notice and votes, and all vote the same way – either all yea or nay. That is the same rule for voting by fax or by ballot. When boards meet face-to-face, everyone can watch each other’s body language. With phone meetings, directors can listen to each other’s tone of voice to better interpret another’s intent. Conducting meetings face-to-face or on the phone requires the board members to respond to each other. Give and take between directors adds to stronger communication and better decisions. It ensures an effective fiduciary environment. The board can indeed act as a “deliberative body.” Directors are expected to inform each other of their opinion before a vote. Polling, or voting with a fax or email, does not encourage that needed robust communication.
Email is a useful tool. Sending information via email saves time. The norm for sending board packets today is as an attachment through email or on websites where packets are distributed using a board portal. There are also a number of new websites that act as repositories for board data. Technology saves staff time. Sending periodic updates on issues not requiring board action via email is also acceptable, even advised.
However, using email for other types of board work creates problems. We have recently been involved with a number of good organizations that experienced increased dysfunction because of email and text communication.
The first troublesome use we saw involved email debates on controversial issues. In these cases, the exchanges impaired the board’s ability to reach consensus. Using email when everyone agrees may work. However, as often happens, when there is dissent, it is easy to misinterpret another’s intent through email. Some people may feel more at liberty to be less courteous than they would be face-to-face. Or when there is disagreement, a back and forth debate is hard to manage – not even Modified Robert’s Rules can be followed. Regardless, if email is used to make decisions, sooner rather than later, there will be conflict that would have been much less likely had the debate happened on the phone or in person.
The resulting dysfunctions we have observed from email debates vary. One of the most common is that while a few directors debate on email, most disengage. Some become angered – others become numb to the banter. Regardless, email debates rarely engage everyone in exchanging useful opinion, and even more rare, do they create an outcome where consensus is reached. And even if consensus is reached, no decision is legal without unanimous consent.
Our advice – use email to inform, not debate. If any director tries to express opinions on potentially controversial issues via email, encourage them to bring their comments to the next formal meeting. Do not allow email debates.
Another equally troubling use of technology is texting during board meetings – even during executive sessions. We have heard of confidential board decisions hitting the street before an executive session ended. That behavior is, of course, a breach of your statutory duty to the corporation and is clearly unethical.
We have also heard other reports of a few directors texting each other during a meeting to strategize motions. We have even heard of directors texting others not on the board, outside of the meeting, to give them a blow-by-blow account of the proceedings, or to seek input. While this is not illegal if not in executive session, it is disruptive. When directors are in a board meeting, all discourse should be face-to-face to enhance the deliberative process. While Foraker is not a big fan of using Robert’s Rules verbatim, we encourage at least their use as a framework for order. Texting another board member in the room is like speaking without recognition. Texting someone who is not in the room could be challenged as a violation of a director’s “duty of loyalty” that requires confidentiality – even when not in executive session. Texting your Millennial friends and relatives is a new norm in society. Texting during board meetings should never become a norm.
Our advice – discourage texting as a tool for board work. While it can be useful to inform like email, it creates many challenges for a good deliberative process. When a majority of the directors is “device-addicted,” it may be necessary to ban smart phones from meetings. Still, it is always best to ask for, and expect good behavior before mandating that behavior.
With these considerations, we would like to suggest new rules:
- Email should only be used to inform.
- When a decision must be made between meetings, call a special session, or if your bylaws allow, have the executive committee meet and decide – do not vote by email. The only exception to this rule would be voting on something like a resolution to open a bank account where time is of the essence and the likelihood of debate is minimal. However, it may take more time to get a unanimous consent vote with email than to just meet the legal way.
- Using email to express opinions on contentious issues should never be allowed.
- No director should instruct the CEO to take action via email without the vote of the board authorizing such direction. Directors can email the CEO to request information.
- No texting or emailing should occur during board meetings.
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