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Virtual Nonprofit Board and Member Meetings in the Time of COVID

Since the onset of the novel Coronavirus 2019 (COVID), everyday life has been upended for everyone. Nonprofits, their boards, and their members haven’t escaped the disruption, but life (and compliance with nonprofit law!) must go on.

One serious challenge in the age of COVID is how, or whether, to hold in-person meetings. We have received a number of questions from clients about their ability to hold virtual meetings for directors and members. While many states have relaxed rules around virtual meetings, nonprofits must continue to be vigilant. In this post I briefly discuss how nonprofits can make sure they are able to hold virtual meetings while complying with applicable law.

Meetings are important!

Board and member meetings serve important functions. Membership meetings allow the members to elect directors and weigh in on important issues facing the nonprofit. Directors’ fiduciary duties continue, notwithstanding the pandemic – their duties include effective oversight of the nonprofit’s activities and management. While some nonprofit activity has ground to a halt, other organizations are busier than ever, being asked to cope with the intersecting challenges of a pandemic, economic recession, and civil rights movement taking place at the same time. Board members cannot put their fiduciary duties on hold because in-person meetings are more difficult. Directors have to find a way to carry out their normal board activities in these abnormal times. Virtual meetings are one tool.

Check your documents!

Before the Board can arrange a virtual board or member meeting, the Board needs to confirm that virtual meetings aren’t prohibited by the nonprofit’s own rules. Any restriction on virtual meetings would typically be spelled out in the organization’s bylaws. Most nonprofits formed in the past ten years will likely have language that expressly allows for virtual meetings, or will be silent on virtual meetings. If your organization has members, check the sections of the bylaws that apply to member meetings and then check the section that deals with board meetings – sometimes there are different rules!  Also, if your bylaws reference Robert’s Rules of Order as rules applicable to the organization, you should also review those rules with respect to the conduct of virtual meetings.

Unfortunately, some bylaws specifically require in-person meetings. If your bylaws specifically require in-person meetings, the organization cannot move forward without making a revision that allows virtual meetings. Bylaws revisions are important to get right procedurally – I recommend checking with counsel to ensure that any bylaws revisions are properly handled.

Check the law!

Assuming the bylaws do not prohibit virtual meetings, you should check applicable state law to see how state law deals with virtual meetings. The law that applies depends on where the nonprofit is legally incorporated. That can differ from where the nonprofit’s headquarters is located or where it conducts its activities. Be sure to check the appropriate state rules (or get your favorite attorney to check for you)!

State laws vary, but in general they permit virtual board meetings if the nonprofit’s bylaws don’t prohibit such meetings. State laws with regards to member meetings tend to favor in-person meetings, but some states permit virtual meetings. Look for other requirements – some state laws specify that all participants in the virtual meeting must be able to hear and be heard throughout the meeting. Other states have different participation requirements for members and directors.

The “hear and be heard” requirement is tricky when dealing with large meetings (especially in the member context). Logistically, many organizations use the “mute” function of a videoconferencing app for large meetings. The mute function guarantees that there are no unexpected or unintentional disruptions during the meeting. However, in order to comply with state law, your participants need to be able to voice their opinions throughout the meeting. If they’re muted by the organizer, your meeting may technically be in violation of state law unless members are able to un-mute themselves. I recommend asking members to voluntarily mute themselves, or if muted by the organizer, allow users to un-mute themselves if they would like to contribute to the conversation. The organizer could also mute participants for the presentation of each agenda item, then the floor can be opened for discussion for each agenda item so all participants have a chance to weigh in on each piece of business before the organizer mutes the participants again.

Some states require a physical location to be designated in the notices for the meetings, even if they are to be held virtually. I generally recommend designating the organization’s principal office, but clarifying that all aspects of the meeting will be virtual.

Finally, check to see if the state has issued special guidance related to meetings. Many state regulators and governors have attempted to loosen restrictions on virtual meetings during COVID, to the extent they are permitted by law. Their guidance may affect whether you need to make any changes to your organization’s bylaws. For instance, New York’s Charities Bureau issued special guidance with regards to virtual meetings early in the pandemic. The notice discussed temporary changes to New York law during the pandemic allowing annual members’ meetings to take place virtually. The state also provided helpful information to guide organizations as they prepare to carry out a virtual meeting for the first time.

Be Careful!

To ensure that your organization doesn’t become too relaxed with its compliance around meetings, I offer the following cautionary tale. Just as directors must continue to observe their fiduciary duties, state regulators are keeping an eye on nonprofits during the pandemic. In July, the Pennsylvania Attorney General filed a lawsuit against Lincoln University’s Board of Trustees for failing to follow statutory and internal policies and procedures with regards to their meetings. While there were a number of other issues,** a large portion of the lawsuit relates to two main problems: (i) a portion of the Board was unable to participate in a Zoom when their microphones were muted by the host; and (ii) the Board allegedly failed to comply with the notice provisions in its own bylaws.

** The main dispute relates to the ability for newly designated Trustees to be seated without approval of the Board’s Nominations Committee. But the AG’s hook to bring the suit related to relatively dry issues of governance compliance.

Conclusion

While boards and members should make use of the tool of virtual meetings, it’s important to do so while complying with the nonprofit’s internal governance and applicable state law. If virtual meetings are new to your organization, it’s a good idea to check in with your legal counsel to make sure you’re doing everything right.

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who we work with

Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

A.B. Data
AB InBev Foundation
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
Association of Fundraising Professionals
Avalon Consulting
Baton Rouge Area Foundation
Black Lives Matter Global Network Foundation
Bleeding Blue for Good Fund
Bradley Cooper’s One Family Foundation
BrightFocus Foundation
Brooks Brothers
Chadwick Boseman Foundation for the Arts
Changing Our World
Charity Defense Council
Christian Appalachian Project
Doctors of the World/ Medecins du Monde
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Estee Lauder Companies, Inc.
Feed The Children
Food For The Poor
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Hope for New York
International Campaign for Tibet
International Crisis Group
International Justice Mission
J. Crew Group
Johns Hopkins University
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law
LSU Foundation

Marts & Lundy
Meyer Partners, LLC
Milken Institute
NAACP Foundation
National Alliance on Mental Illness (NAMI)
National Marrow Donor Program
National Park Foundation
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
PopSockets
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rockefeller Philanthropy Advisors
Save the Children Federation
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Subaru of America
The Little Market
Touro University
United States Equestrian Team Foundation
United Way Worldwide
University of Connecticut
University of Virginia
Vote.org
Whitney Museum of American Art
World ORT
World Wildlife Fund
YWCA USA

A.B. Data
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
American Rivers
Association of Fundraising Professionals
Baton Rouge Area Foundation
BrightFocus Foundation
Burger King McLamore Foundation
Cancer Care
Carnegie East House and James Lenox House Association
Center for Car Donations
Changing Our World
Charity Defense Council
Christian Appalachian Project
Coca-Cola Scholars Foundation
Convoy of Hope
Cornell University
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Feed The Children
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Helen Keller Services
Hope for New York
Human Rights Watch
Humane Society of US
Indiegogo
International Campaign for Tibet
International Crisis Group
International Justice Mission
Japanese American National Museum
Johns Hopkins University
Lane Bryant Charities
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law
LSU Foundation
Mattel
Meyer Partners, LLC
Milken Institute
National Breast Cancer Coalition
National Marrow Donor Program
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Obama Foundation
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rock and Roll Hall of Fame and Museum
Rockefeller Philanthropy Advisors
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Steinhardt Foundation
Subaru of America
United States Equestrian Team Foundation
University of Montana Foundation
University of Nevada, Las Vegas Foundation
Whitney Museum of American Art
World ORT
World Wildlife Fund
YMCA USA
YWCA of New York City
YWCA USA

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news & events

Our attorneys’ recent contributions to the media and nonprofit sector publications.

news & events

Check out our attorneys’ recent contributions to the media and industry publications.

Secure Your Data – Seriously, AFP New York Chapter News
As Jon Dartley, a data privacy and security attorney at Perlman and Perlman says, “It is vital to have the appropriate legal terms in the contract to protect your interests.”  Find out what your liability limit is.  Have it in writing who bears the responsibility and cost of a data breach.  And, have the vendor agree on a specific timeframe within which they need to advise you of a data breach.

Warning: Don’t Cut Legal Corners When Mixing Social And Business Impact,  Forbes
Particularly striking is that (Karen) Wu believes this is the “first multi-state regulatory activity involving cause marketing in almost two decades.”

Is stealing, then giving back, OK?
Cliff Perlman lends his advice on theft within a nonprofit.

Buyer Beware: Negotiating Terms in Technology Agreements
Jon Dartley provides tips on negotiating contracts with technology vendors.

Four Ways Charitable Giving Could Change with a Tax Overhaul
Cliff Perlman remarks on the possible threat of a change to charitable deduction.

How To Deal With Residual Data, Nonprofit Times
Jon Dartley’s advice on addressing “data exhaust”.

Secure Your Data – Seriously, AFP New York Chapter News
As Jon Dartley, a data privacy and security attorney at Perlman and Perlman says, “It is vital to have the appropriate legal terms in the contract to protect your interests.”  Find out what your liability limit is.  Have it in writing who bears the responsibility and cost of a data breach.  And, have the vendor agree on a specific timeframe within which they need to advise you of a data breach.

Warning: Don’t Cut Legal Corners When Mixing Social And Business Impact,  Forbes
Particularly striking is that (Karen) Wu believes this is the “first multi-state regulatory activity involving cause marketing in almost two decades.”

Is stealing, then giving back, OK?
Cliff Perlman lends his advice on theft within a nonprofit.

Buyer Beware: Negotiating Terms in Technology Agreements
Jon Dartley provides tips on negotiating contracts with technology vendors.

Four Ways Charitable Giving Could Change with a Tax Overhaul
Cliff Perlman remarks on the possible threat of a change to charitable deduction.

How To Deal With Residual Data, Nonprofit Times
Jon Dartley’s advice on addressing “data exhaust”.

perlman & perlman philanthropic sector law firm blue and green logo

click to exit page

perlman & perlman philanthropic sector law firm blue and green logo

click to exit page

silk lanterns

who we work with

Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

who we work with

Our clients are diverse nonprofit organizations with a broad range of missions, as well as for-profit companies in evolving areas such as social enterprise, corporate philanthropy, joint ventures, technology-driven fundraising, and impact investing.

A.B. Data
AB InBev Foundation
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
Association of Fundraising Professionals
Avalon Consulting
Baton Rouge Area Foundation
Black Lives Matter Global Network Foundation
Bleeding Blue for Good Fund
Bradley Cooper’s One Family Foundation
BrightFocus Foundation
Brooks Brothers
Chadwick Boseman Foundation for the Arts
Changing Our World
Charity Defense Council
Christian Appalachian Project
Doctors of the World/ Medecins du Monde
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Estee Lauder Companies, Inc.
Feed The Children
Food For The Poor
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Hope for New York
International Campaign for Tibet
International Crisis Group
International Justice Mission
J. Crew Group
Johns Hopkins University
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law
LSU Foundation

Marts & Lundy
Meyer Partners, LLC
Milken Institute
NAACP Foundation
National Alliance on Mental Illness (NAMI)
National Marrow Donor Program
National Park Foundation
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
PopSockets
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rockefeller Philanthropy Advisors
Save the Children Federation
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Subaru of America
The Little Market
Touro University
United States Equestrian Team Foundation
United Way Worldwide
University of Connecticut
University of Virginia
Vote.org
Whitney Museum of American Art
World ORT
World Wildlife Fund
YWCA USA

A.B. Data
Absolut Company
American Committee for the Weizmann Institute of Science
American Diabetes Association
American Friends of the Hebrew University
American Parkinson Disease Association
American Rivers
Association of Fundraising Professionals
Baton Rouge Area Foundation
BrightFocus Foundation
Burger King McLamore Foundation
Cancer Care
Carnegie East House and James Lenox House Association
Center for Car Donations
Changing Our World
Charity Defense Council
Christian Appalachian Project
Coca-Cola Scholars Foundation
Convoy of Hope
Cornell University
Doctors Without Borders/ Medecins San Frontieres
Drug Policy Alliance
Duke University
Emory University
Feed The Children
Gerald R. Ford Presidential Foundation
Grameen Foundation USA
Helen Keller Services
Hope for New York
Human Rights Watch
Humane Society of US
Indiegogo
International Campaign for Tibet
International Crisis Group
International Justice Mission
Japanese American National Museum
Johns Hopkins University
Lane Bryant Charities
LSU Foundation
Mattel
Meyer Partners, LLC
Milken Institute
National Breast Cancer Coalition
National Marrow Donor Program
Natural Resources Defense Council
North Carolina State University
North Shore Animal League
Obama Foundation
Operation Smile
PBS Foundation
Pernod Ricard USA
PetSmart Charities
Population Action International
Project ORBIS International
Public Interest Communication
Rails to Trails
Redeemer Presbyterian Church
Rock and Roll Hall of Fame and Museum
Rockefeller Philanthropy Advisors
Sesame Workshop
Simon Wiesenthal
SOS Children’s Villages – USA
Steinhardt Foundation
Subaru of America
United States Equestrian Team Foundation
University of Montana Foundation
University of Nevada, Las Vegas Foundation
Whitney Museum of American Art
World ORT
World Wildlife Fund
YMCA USA
YWCA of New York City
YWCA USA
Lautman Maska Neill & Company
Lawyers Committee for Civil Rights Under Law

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We view our clients as partners that share our commitment to bring about change in the world. Our goal is to provide them the peace of mind of knowing that they are in compliance with their legal obligations and to further empower them to achieve positive social impact and financial success.

Our Mission

Our mission is to provide the highest quality, integrity-driven legal services to our clients, using a practical, consultative, client-focused approach to identify and respond to problems and challenges.

We strive to maintain a culture characterized by respect, opportunity, diligence, mutual empowerment, entrepreneurship, and fair reward for efforts made on behalf of clients and the firm.

Perlman & Perlman is a Certified B Corporation

Certified B Corporations use the power of business to solve social and environmental problems. B Corps are unlike traditional businesses because they

  • Meet comprehensive and transparent social and environmental performance standards
  • Meet higher legal accountability standards
  • Build business constituency for good business