Parliamentary Guidance
Email (and other absentee) Voting Methods

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Posted by WV-WMD Synod, ELCA on Wednesday, April 22, 2020

May our congregation council vote by email?

Probably not.

Several times, this question has been asked, and, I suspect, there are many more times it should have been asked. Now that we are under travel and meeting restrictions because of the pandemic, the question seems even more relevant. The answer, however, is not straightforward, as it hinges upon multiple factors:

For this guidance, we will focus upon the most common conditions as relate to the congregations of the West Virginia-Western Maryland Synod, and I can tell you that, most of the time, the answer will be, "No." Read through this to see whether you are a special case, and, even if you are not, the counsel at the end may prove helpful.

Does the state matter?

States (and commonwealths) have legal code which governs legal entities within their jurisdictions. A congregation is a legal entity: in many states, an incorporated entity; in some, merely a business entity. Some might object that this is an infringement upon First Amendment rights, but it should be noted that First Amendment rights do not cover a host of matters, mostly mundane. Ministerial exception, a venerable legal doctrine in America, as well as the more general body of First Amendment case law and jurisprudence, does not exempt an ecclesiastical entity from following its own governing documents. Multiple court cases have established the court's prerogative to intervene in ecclesiastical disputes and enforce ecclesiastical temporalities, i.e., the policies and procedures laid out in a given ecclesiastical entity's governing documents. In other words, the court may allow tremendous latitude to a church to devise governing documents to suit itself, but it will uphold those governing documents when push comes to shove. To put it yet another way, you make your own rules, you live by those rules.

West Virginia

With respect to council meetings, WV Code treats a council as a board of directors of a non-profit. WV Code §31E-8-821 states,

Action without meeting.
(a) Unless the articles of incorporation or bylaws provide otherwise, action required or permitted by this chapter to be taken at a board of directors' meeting may be taken without a meeting if the action is taken by all members of the board. The action must be evidenced by one or more written consents describing the action taken, signed by each director, and included in the minutes or filed with the corporate records reflecting the action taken.
(b) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.
(c) A consent signed under this section has the effect of a meeting vote and may be described as having the effect of a meeting vote in any document.

This is actually a fairly rigorous standard, one that, if it were followed to the letter, would result in councils opting for a conference call instead. The key phrase, however, is in paragraph (a): "Unless the articles of incorporation or bylaws provide otherwise." For most of our congregations, our governing documents do provide otherwise, i.e., they contain a provision adopting Robert's Rules of Order as the parliamentary authority, and that trumps, as you will see, what WV Code would otherwise allow.

Maryland and Virginia

I have not had reason to investigate this state and this commonwealth because no congregation from either jurisdiction has asked the question. Once it is asked, I will look into it.

Do our governing documents matter?

Yes, as explained above, the court takes seriously the temporalities of the ecclesiastical entities and will enforce them should a matter be brought to the court.

The tricky part is in the details of each individual congregation's governing documents. The assumption that all our congregations operate by Robert's Rules of Order Newly Revised (RONR), latest edition, will be correct nearly all the time, but it might not be in some isolated cases. Well, to be more honest, there are a great many congregations that do not operate de facto by RONR even if their governing documents state that they so do de jure, but that is another matter entirely.

Does RONR apply to council?

The Model Constitution for Congregations of the Evangelical Lutheran Church in America states,

C10.07. Robert’s Rules of Order, latest edition, shall govern parliamentary procedure of all meetings of this congregation.

Now, this provision is found in Chapter 10, a chapter which deals with the Congregation Meeting. Some might argue that C10.07, therefore, only relates to the Congregation Meeting. The council, however, as a subordinate deliberative assembly, is under the parliamentary authority of the superior body unless stated otherwise in the governing documents (cf. RONR §50, s.v., "conduct of business in committees"). Therefore, unless there is a provision in the governing documents of equal rank to C10.07 (i.e., a constitutional provision) providing for the council to operate by a different authority, the council is bound to follow RONR.

C10.07, however, is not a required provision of the Model Constitution for Congregations. An individual congregation may or may not have included that provision in that congregation's constitution. Be careful when checking on this. A provision to the same effect may be found under a different number or in an entirely different chapter or in the bylaws. Some digging may be required. If you find that your congregation's governing documents do not indicate a parliamentary authority, you may want to call the Synod Office for advice.

What does RONR say?

RONR §45, s.v., "absentee voting," states,

It is a fundamental principle of parliamentary law that the right to vote is limited to the members of the organization who are actually present at the time the vote is taken in a regular or properly called meeting, although it should be noted that a member need not be present when the question is put. Exceptions to this rule must be expressly stated in the bylaws. Such possible exceptions include: (a) voting by postal mail, e-mail, or fax....

Do you have a bylaws (or constitutional) provision that expressly permits absentee voting? If not, assuming you are bound by RONR, you may not use email voting.

If you do have such a provision, you must follow the limitations stated in that provision as well as any details found in RONR §45 that are not superseded by your governing documents (including special rules of order related to absentee voting).

If you are saying, "Gee, we should get something about this written into our bylaws," you will want to think through what procedures you would like to establish. The Synod Office can assist with this.

What do we do in the absence of a provision allowing for email voting?

To be clear, and technical, there can be no email vote without appropriate provision in your governing documents. What you can do is take an opinion poll of your council members. This is a poll and not a vote. A vote would have legal standing. An opinion poll does not.

Someone who knows RONR will quickly say, "Straw polls are out of order." Indeed, they are per RONR §45, s.v., "straw polls not in order." Matters of order, however, are matters related to conduct in session. An email conversation is not a session of the council. It is merely a conversation among council members and only a mere conversation even if all the members are participating. So, an opinion poll could be taken by whatever means seems expedient, but it has no legal standing.

Such a poll may help inform officers or agents of the council as to the prudence of taking an action without official council authorization. In emergency situations or in pressing matters when it is proving impossible to convene a council meeting (even telephonically), this may be the best course of action. At the next regular council meeting (or special meeting called for this purpose), the action should be reported to the council. The appropriate motion upon receiving such a report is to ratify the action (q.v., RONR §10, s.v., "motion to adopt and motion to ratify"). N.B., the council is not under obligation to ratify any such action. If the council does not ratify the action, the officer(s) or agent(s) taking the action in excess of instructions ordered by a properly constituted meeting became personally liable for the action. This also applies to the prevailing members in a non-quorum meeting taking perceived emergency action.

Should we hesitate?

If it is a true emergency (e.g., the boiler fails and the pipes could very well freeze and burst), emergency action is called for, and, sometimes, normal procedure cannot be followed. RONR actually provides for this through the ratification process found in RONR §10.

Officers and agents should hesitate to use this approach because of personal liability. Remember, if ratification is not forthcoming, the persons taking the action are personally liable. If, as an officer or agent, you have any doubts about ratification, think twice.

Councils should hesitate to use this approach because of the potential for abuse. The constitutional economics involved are complicated. Without deliberation, a minority but persuasive voice loses its ability to sway the assembly. It might not be possible to bring important information to the table or seek clarification. Amendment is impossible. When provision for unit veto exists, as in the WV Code cited above, the dissenting party may be loathe to exercise it for reasons of relationship maintenance. In the end, an unscrupulous officer may rely on any or all of these factors to ramrod action.

Emergencies should be treated as emergencies. If something is merely pressing, then a special meeting should be convened. If it can wait until the next meeting, then it should wait until the next meeting.


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