March 25, 2020

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Richard Stringham

Was that a Board Decision?

Readers of our blogs will recall that only the board as a whole has authority to make board decisions. It may delegate some of its authority to others (e.g., the CEO, board officers, or board committees), but there are some things it should never delegate to others and other decisions that it may choose to hold onto. If the board as a whole is holding authority for a decision, it needs to make those decisions in an unequivocal manner.  

However, some boards that I’ve observed seem to be confused on this point. For example, during a board meeting, board members have a conversation. There seems to be consensus and then it is on to the next agenda item. Unfortunately, it is unclear as to whether the board actually made a decision!  

In another blog, I’ve noted that even Robert’s Rules of Order allows boards of 12 or less to operate with less formal rules. Nonetheless, there are still some procedures that should be followed to ensure clarity of a board decision. 

If the board is considering a decision and someone makes a motion, the chair should call for and keep any debate focused on the motion. Whether the motion needs to be seconded depends upon the level of formality that the board requires. Robert’s Rules of Order do not require that a motion be seconded when the board is 12 or  fewer members; however that should be codified by the board. When the debate is exhausted or the board has decided via another motion that it will close debate, the chair calls for the vote. After the vote has been taken, the chair announces the results, including the decision, which is duly recorded in the minutes. 

But need the board always make a motion to make a decision? No. Instead, the board can make a decision via the process of unanimous consentRobert’s Rules of Order states: “In cases where there seems to be no opposition in routine business or on questions of little importance, time can often be saved by the procedure of unanimous consent…” RONR (11th ed.), p.54, ll. 13-15  

To use unanimous consent, a member of the board, typically the chair, asks if there is any objection to a proposal. For example: “September 20th appears to be an acceptable date for our next annual meeting. If there are no objections to having our meeting on September 20th, then we shall proceed with the meeting on that date.” At this point the chair pauses and, if there are no objections, continues with: “Seeing as there are no objections, our annual meeting is set for September 20th.” 

If one or more board members object, then the decision is put to a vote according to the codified standards that the board uses. 

A few things to note regarding unanimous consent: 

a) The chair doesn’t ask if all are in favour. Instead she is simply seeking to determine if there are any objections. Unanimous consent is not the same as a unanimous vote in favour of the preferred solution. Instead, it is a form of asking: “Does anyone oppose this proposal?”  

b) Unanimous consent is equivalent to any voting threshold, from a majority, to a super majority (e.g., 2/3 vote), to unanimity. For example, if your parliamentary rules require a 2/3 vote, unanimous consent satisfies that requirement.  

c) By not objecting, a board member has signaled that she/he does not have any significant concerns or issues and can live with the proposal. Board members should be very careful in this regard. In several jurisdictions, if a board member has not opposed a decision and had her opposition recorded in the minutes, she is viewed by the courts as agreeing with the majority. (Furthermore, in some jurisdictions, abstentions are viewed as agreement with the prevailing side except when the board member is recused due to conflict of interest.) In other words, if you hear the chair state: “If there are no objections…” your antenna should go up, as the chair is signaling that a decision is about to be made and if you do not object, you are considered to have agreed with the decision. 

d) The Chair should always announce the results: “Seeing as there are no objections, we will…” This makes the decision of the board clear to all present including the recording secretary, who should record the board decision as having been made by unanimous consent. Only the chair can make that declaration. Only the secretary has the authority to record the decision. 

Whether it is via a standard voting process or use of unanimous consent, being clear that the board as a whole has made a decision is critical for all who are charged with recording and implementing that decision.

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