Board Actions by Email – California Nonprofits

Voting concept.

While it may be common practice for nonprofit boards to take action by email voting, this may not be permissible under the California Nonprofit Corporation Law. Boards may take action only at a duly held meeting or by unanimous written consent. The issue then is whether an email vote meets the requirements of a duly held meeting or unanimous written consent.

A board meeting may take place via conference call or electronic video screen communication, provided that all directors participating can hear one another. A meeting may also take place via other electronic transmission if (a) each director participating can communicate with all other directors participating concurrently, and (b) each director is provided the means of participating in all matters before the board. Generally, an email vote would not meet such requirements because of the lack of real-time participation by all participating directors.

A board may also take action by unanimous written consent, that is, “if all members of the board shall individually or collectively consent in writing to that action.” An “interested director” (generally, one with a material financial interest in the transaction being voted upon) is excluded from the “all members of the board” requirement. Such action has the effect of a unanimous vote of the directors.

The California Corporation Law does not expressly authorize a unanimous written consent to be executed by email. However, an email vote may constitute a unanimous written consent if all directors, other than any interested directors, approve the same action “in writing.” A “writing” is defined in the Nonprofit Corporation Law  to include “facsimile, telegraphic, and other electronic communication as authorized by this code, including an electronic transmission by a corporation that satisfied the requirements of section 20.” At the time this post was originally written, section 20 required that an email by a corporation satisfy the federal E-Sign Act, which defines an “electronic signature” as “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” Since such time, section 20 has been amended to omit such reference. However, a written consent sent by email is an electronic transmission to a corporation and not by a corporation, and accordingly section 20 would not directly apply regardless.

For a unanimous written consent, it is generally believed that an approval in writing requires a valid signature of the director, whether it be manual or electronic, or other validation that the director’s consent has been provided. Where the signature is simply the typed name of the sender, an issue is whether the board relied with due care on the authenticity of the signature. While not directly applicable, the California Government Code, which applies only to communications with public entities, offers some guidance. It states that “the use of a digital signature shall have the same force and effect as the use of a manual signature if and only if it embodies all of the following attributes:

  1. It is unique to the person using it.
  2. It is capable of verification.
  3. It is under the sole control of the person using it.
  4. It is linked to data in such a manner that if the data are changed, the digital signature is invalidated.”

For a trivial action, If the purported sender of an email consent denies sending it, there may be little, if any, harm. However, the same may not be true for a major transaction or corporate change. In such case, the requirement of a manual signature (on a form that can be scanned and sent to the corporation by email) seems prudent. Because it may be too much trouble to determine where an email consent would or would not be appropriate, I generally disfavor unanimous written consents by email without use of manual signatures or unique digital signatures.

Additional Resources:

Can Nonprofit Boards Vote by Email? by Gene Takagi & Emily Chan

Can a California Nonprofit Board Vote by Email? by Steven R. Chiodini

Can Association Boards of Directors Vote by E-Mail or Fax? by Jeffrey S. Tenenbaum; and

Electronic Signature Legislation by Thomas J. Snedinghoff and Ruth Hill Bro.

11 thoughts on “Board Actions by Email – California Nonprofits

  1. Jackson Baker

    Your article on email voting was published in May 2009, nearly seven years ago. Have there been further development and definition regarding NEOs using email communications to make board decisions?

    • Gene Takagi

      No developments of which I’m aware in terms of directors voting by email. I believe there may be more customary acceptance of just the word “Sam” constituting a signature at the end of an email, but I generally would prefer something that evidences a little better that the director herself or himself actually “signed” it and not rely so completely on the email address itself, particularly on a very important matter (e.g., approval of a time-sensitive merger).

  2. Video conferencing is the key solutions to many problems like these.

  3. Jack, Part 3 of the Nonprofit Corporation Law deals with nonprofit mutual benefit corporations. You can find more about member inspection rights at

  4. Mr. Takagi,
    My name is Jack Surmani, and I am the President of the Bayside Grange # 500 in Bayside and a Deputy for Region # 3, California State Grange.
    I am interested to find out how the California Corporations code “governs” Mutual Benefit Corporations in California.
    Specifically, I wish to know what rights members have in inspecting the membership lists, minutes and regular financial reports of the corporation /association.
    We are a state wide association, the California State Grange, a Non profit Mutual Benefit Association # 0210454. We were chartered in 1873, have 9,000 members and 180 subordinate “community” Granges.
    I can send the bylaws of the California State Grange upon request.
    Thank you for your time,
    Jack Surmani
    President, Bayside Grange

  5. Brent, I’m not sure I understand your question. Meetings of committees are different from meetings of the board and would not depend on board meeting quorum requirements.
    Board committees are generally covered by the same meeting requirements as those that apply to the full board. See Cal. Corp. Code Sec. 5211(c).
    Non-board committee meeting requirements may be spelled out in the bylaws. If there is a reference in the bylaws that such committee meetings will be held pursuant to the same procedures as board meetings, “email meetings” may be problematic.

  6. What does California Non-Profit Law say about electronic meetings of committees constituting less than a quorum of the full Board? Can they be conducted via email? Thanks!

  7. Daniel, Corp. Code Sec. 7513 applies to California nonprofit mutual benefit corporations and action by members, not directors.

  8. Daniel Schaeffer

    What about the sections of the Cal. Code — e.g., Corporation Code Sec. 7513 — that permit actions to be taken without a meeting through written ballots, which may be transmitted and received by the corporation electronically? Would this not permit email voting on board matters?

  9. Thanks for the info about electronic voting. The part about having sole control of the email address is particularly interesting. Just puts another check mark on my rant against people sharing email accounts! Not only might I not know who wrote to me, but perhaps worse, I don’t know who might be reading what I wrote!

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