The devastating pandemic has brought sudden and profound challenges for all of us.
In What Nonprofit Board Members Should Be Doing Right Now to Address the COVID-19 Situation, (March 16, 2020), the experts from BoardSource write: “As the world responds to the threats of COVID-19, many nonprofits and their boards are wrestling with difficult questions and decisions.”
A rewrite of that sentence may be in order; every nonprofit and its board is flying blind in the alarming and rapidly changing circumstances.
In Coronavirus and Nonprofits: Challenges & Resources (March 13, 2020), we wrote that the first step for each and every organization is to convene the board of directors to evaluate and consider options. Even for a group with an experienced chief executive and a large professional staff, any key decisions on how to proceed in these extraordinary circumstances must come from the board.
Under the law of California – which is similar to most other U.S. jurisdictions – the board of directors has the ultimate responsibility for the control and policies of a nonprofit organization. Although the board may delegate management of the day-to-day operations to officers, committees, employees, or a management company, it cannot give away its ultimate duty to govern and oversee. And when and if the board delegates any of this power, it must do it with reasonable care.
Of course, events have moved so swiftly in the past two weeks that the decision of when, where, and how to meet has largely evaporated: in California (and many other jurisdictions), emergency declarations by the governor have precluded in-person meetings. And for organizations with board members who live outside the local area, travel arrangements are largely unavailable in any event.
For many organizations that have never conducted anything other than in-person meetings at regularly scheduled intervals, there may be concerns about the legality of different-than-usual procedures.
Electronic or “virtual” meetings are expressly allowed under the California Nonprofit Public Benefit Corporation law. “Participation in a meeting through use of conference telephone constitutes presence in person at that meeting as long as all members participating in the meeting are able to hear one another.” And following good practice concerning meeting minutes, this document should expressly state that this procedure was followed.
But what about legal notice to each director? Generally, all members of the board must be properly notified of any special meeting. In Special Meetings: What Are The Rules (November 2, 2015), we review in detail the California statute that permits nonprofit corporations to call special meetings in an emergency and how to proceed. In a nutshell, there may be special meetings in addition to regular meetings, so long as there is proper notice.
Happily, the California Legislature has updated its rules on notice as well to take reasonable advantage of technology. In an emergency, where time is of the essence, there is an option of electronic notice of the meeting. There are also provisions for after-the-fact consent to waivers of notice.
In the upcoming weeks and months, there may be no alternative to calling and holding a number of special telephonic meetings of the board.
Many organizations, though, have already adopted and embraced the benefits of holding virtual meetings. There is a helpful body of information and advice on point; see, for example, Running Effective Virtual #Nonprofit Meetings: 9 Best Practices for Facilitating Engagement (September 19, 2017) by Beth Kanter.
One of our favorite nonprofit experts is blogger Vu Le. In his latest post, Things are not normal. It’s OK to not be OK (March 23, 2020) he gives us permission to freak out just a bit before getting on with the urgent business at hand. “We’ve weathered awful things as a society,” he writes, but this is something else, a threat not just to our physical health, but our livelihoods, our way of being, our groundedness, and our optimism for the future. It even threatens the one thing we could always count on during these challenging times: Our proximity to one another and our sense of community.”
What we collectively are facing is extraordinary, and there are no road maps. But we’re all in this together.