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
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.
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
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.
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.
The Model Constitution for Congregations of the Evangelical
Lutheran Church in America states,
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. Robert’s Rules of Order, latest edition, shall govern parliamentary procedure of all meetings of this congregation.
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.
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.
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.
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.
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.