On November 8, 2021, New York Governor Kathy Hochul signed legislation that permanently gives New York not-for-profit corporations and religious corporations the ability to hold virtual meetings beyond the expiration of any emergency declarations related to COVID-19.
Although the new laws make the option of virtual meetings permanent, “secular” not-for-profit corporations and religious corporations are treated differently.
A not-for-profit corporation’s board of directors may choose to hold an “all virtual” meeting (where attendance is solely by means of electronic communication, with no “in person” attendance) or a hybrid meeting (where some attend by means of electronic communication, and others attend “in person”), if such meetings are not prohibited by the organization’s certificate of incorporation or bylaws.
Religious corporations, however, are not permitted to hold hybrid meetings, and may only hold all virtual meetings if the board of trustees (by whatever name, e.g., board of elders, church council, etc.) is authorized to determine the place of meetings, and they, in their sole discretion, determine that the meeting shall be held solely by means of electronic communication, otherwise, it must be held solely in person. Unlike corporations formed under the N-PCL, meetings of religious corporations cannot be held partially virtually—they must be held either entirely in person or entirely virtually.
Although virtual and hybrid meetings have become necessary alternatives to in-person meetings during this time of COVID-19, proper procedures must still be followed even in a virtual setting (notice, quorum, resolutions, minutes).
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RCL § 28. Electronic meetings
Notwithstanding any provision of law, certificate of incorporation or by-laws to the contrary, if the board of trustees of a religious corporation is authorized to determine the place of trustee meetings, corporate meetings, congregant or membership meetings, the board of trustees may, in its sole discretion, determine that the meeting shall be held solely by means of electronic communication, the electronic service and/or platform through which the meeting is held shall be the place of the meeting for purposes of this chapter.
N-PCL § 603. Meetings of members
(a) Meetings of members may be held at such place, within or without this state, as may be fixed by or under the by-laws or, if not so fixed, as determined by the board of directors. The board of directors may, unless otherwise restricted by the certificate of incorporation or the by-laws, in its sole discretion, determine that meetings of members be held partially or solely by means of electronic communication, the electronic service and/or platform by which the meeting is held shall be the place of the meeting for purposes of this article if a meeting is held solely by means of electronic communication. Meetings conducted partially or solely by means of electronic communications in reliance upon this paragraph and any member’s electronic participation in such meetings shall be subject to those guidelines and procedures as the board adopts, provided the board shall implement reasonable measures to: (1) verify that each person participating electronically is a member or a proxy of a member; (2) provide each member participating electronically with a reasonable opportunity to participate in the meeting, including an opportunity to propose, object to, and vote upon a specific action to be taken by the members, and to see, read or hear the proceedings of the meeting substantially concurrently with those proceedings; and (3) record and maintain a record of any votes or other actions taken by electronic communication at the meeting.
Published by Joseph Milano