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When the state nonprofit statute requires notice of a members’ meeting to be given either personally or by mail, does this include electronic mail?  We would like to include email communication/notice in the bylaws as the means of communication. 

This is a question state law and you ought to check with an attorney in your state. I believe a few states were thinking of including electronic mail as a permissible form of notice in their statutes. I haven’t seen a case on the question for a state that does not mention email, but my guess is that it will probably be effective if it is in the bylaws.

Bylaws are usually considered a contract among the parties bound by them, and so long as a provision is not contrary to limitations in the nonprofit corporation act, there is a strong argument that it is a valid provision of a contract.  We have included electronic mail as a possible means of notice in our form bylaws for use in Pennsylvania.  (See Ready Reference Page:  “Bylaws Function as Constitution for Nonprofit Corporations.”)  I think you would have a harder argument that email is effective if it is not in the bylaws.

We have also included in our form a provision that comes from a separate Pennsylvania statute that essentially says where parties agree, they may treat electronic mail as equivalent to a written document.  Since the only way to deliver this kind of written document is by electronic mail, that delivery ought to be effective.

Comments from our Readers

AnteApple though it may seem, not everyone has email and notice by email would not reach all the members of an organization, which I suspect the law requires. -S.A. via e-mail

With regard to e-notice (and e-voting):  Illinois, where I practice, has just done a major overhaul on our NFP act.  We now permit both e-notice and e-voting in NFP entities.  A prime mover behind these changes was the Illinois State Bar Association which has been spending a fortune on annual elections via regular mail.  This was a major piece of their legislative agenda this year, and with help from other entities, the bill passed.  -L.H. via e-mail

I helped lead the development of the first charter school in California. We shared a tremendous amount by email. We found that almost every decision made by email was reversed in face to face meetings...to the better solution. Under any circumstances, DO NOT MAKE ANY DECISIONS BY EMAIL. This same condition has been valid for ANY decisions in which I have participated. - E.F. via e-mail

This is an excellent point, and illustrates why most states require unanimous written consents to approve actions without meetings.  It is always better to have the opportunity to talk things out when decisions have to be made.

The question was not about decision making, however, but merely about sending notice that something will be discussed.  I am less concerned about email for that purpose than for decision making. -- Don Kramer

9/8/2009

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