Virtual meetings can help associations conduct business when not all members can be physically present. Tools such as Skype, FaceTime, Zoom, GoToMeeting and Google Hangouts allow board members to hear each other through microphones and speakers and to see each other through video cameras regardless of where they are located. And that old standby—the telephone conference call—remains popular and legally permissible for board meetings, even though it doesn’t allow participants to see each other, documents or other materials.
South Carolina law does not specifically authorize meetings of HOAs or condo associations or other nonprofit corporations to be held with some or all members attending remotely by video conference or telephone conference. However, state law also does not prohibit meetings being conducted that way, either. In light of Section 33-31-708(a) of the South Carolina Code referenced above, which allows for any action at a meeting to be conducted by electronic ballot, as long as the association’s by-laws or other governing document does not prohibit virtual meetings held by electronic means, then it is reasonable to conclude that such meetings are legally permissible,
In general, it is a recommended practice for board deliberations and decisions to be held in a fashion that allows board members to talk to one another contemporaneously and property owners to hear that discussion in real time. With effective use of one of the available electronic platforms, that can be achieved without all participants being physically together in the same room.
It bears repeating for emphasis, although South Carolina law does not prohibit virtual attendance, it is recommended that your governing documents be reviewed by legal counsel to ensure that your association’s documents do not prohibit it.
Section 33-31-708(a) of the South Carolina Code (the Nonprofit Corporations Act) provides as follows:
Action by written or electronic ballot.
(a) Unless prohibited or limited by the articles or bylaws, any action that may be taken at any annual, regular, or special meeting of members may be taken without a meeting if the corporation delivers a written or electronic ballot to every member entitled to vote on the matter.
The remaining subsections of Section 708 go on to set forth the requirements for electronic ballots.
Sean O’Connor
Finkel Law Firm, LLC
PO Box 41489
Charleston, SC 29423-1489
(843) 577-5460
ssoconnor@finkellaw.com
www.finkellaw.com
Most questions have not dealt with paper ballots, but rather whether to hold in-person meetings and if and how to instead hold meetings by some remote means.
There has been discussion of how to handle mail during the pandemic. Some have not changed operations, others have gone so far as to let mail sit for a period of time and use gloves to then handle it.
I would suggest reviewing the Bylaws to ascertain if paper ballots are required (versus just the way it has been done). If so, and the Bylaws can be amended by the Board, then consideration should be given to an amendment permitting voting by paper or electronic means. If, however, the Bylaws require a vote of owners and that cannot happen (in time), the Board should consult its lawyer relative to the possibility of using applicable provisions of state law for the Board to enact an emergencyBylaw to deal with the situation.
Sara Austin
Austin Law Firm, LLC
226 E. Market Street
York, PA 17403
(717) 846-2246
saustin@austinlawllc.com
www.austinlawllc.com