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Many association executives ask about the proper scope and content of board meetings. It’s important to keep minutes in accordance with legal and organizational governance best practices. Here are some tips about keeping board meeting minutes.
As an initial matter, under state corporate law, directors have fiduciary duties to manage the association’s activities. Directors exercise these duties by keeping informed, acting in good faith, and deliberating at meetings as to the proper course of action for the associations. When the board makes decisions, a record of those actions is important for keeping track of policy determinations and memorializing the actions for future reference. While minutes of meetings are often not specifically legally mandated under state corporate laws, it’s advisable to maintain records of meetings and it certainly constitutes a best practice. In addition, state corporate laws generally provide that members are entitled to obtain certain corporate records, including financial reports and minutes of board meetings. The minutes also will provide a record of the board’s exercise of its fiduciary duties and serve as guidance for operations.
Although there are no formal legal requirements with respect to what must be included in meeting minutes, we can look to parliamentary procedure for guidance. Robert’s Rules of Order (11th ed.), Section 48, says that meeting minutes “should contain mainly a record of what was done at the meeting, not what was said by the members.” Thus, minutes should record the actions taken, and not be a verbatim transcript or summary of what was said. Robert’s lists the following key elements of meeting minutes:
1. date, time, and place of the meeting
2. kind of meeting (i.e. regular or special)
3. list of the presiding officer, directors, staff and other who attended
4. presence of a quorum
5. other information to demonstrate that the meeting was called in compliance with the bylaws
6. Whether the minutes of the previous meeting were read and approved
7. Exact statement of actions taken at the meeting.
Ray Keesey’s book, Modern Parliamentary Procedure (1994) elaborates on this (p. 84): “Some organizations go to the extreme of recording the name of each member who presents a motion, major ideas presented in the discussion, and the numerical count on all votes. Such details are rarely needed and only make the job of the secretary difficult....It is desirable to include in the minutes the major arguments for and against a motion, but these should not be identified with speakers proposing them since the privilege of discussing freely is jeopardized when what is said becomes a part of public record.”
So, in the main body of meeting minutes, it’s recommended that the minutes include a short statement of each action taken by the board with a brief explanation of the rationale for the decision. If the board members engage in extensive deliberation before passing a motion, it is also recommended that the major arguments be summarized in the minutes. This will provide evidence that the board exercised its fiduciary duties.
Although the action taken by the board should be recorded in the minutes, the minutes should definitely not read like a transcript of the meeting. As such, the names of participants in the deliberation do not need to be recorded. One of the reasons is to encourage board members to freely deliberate without being concerned of potential legal liability arising out of statements made during the meeting. Note that the new D.C. nonprofit law says that it will be presumed all board members consent to actions taken, so if some directors are in disagreement it’s reasonable to note their objections (D.C. Code Sections 29-406.24).
In addition, statements about conversations reviewed years later in the context of litigation can be misinterpreted. Minutes of an organization’s meetings are one of the types of documents that lawyers will look for in litigation to determine potential weaknesses in the case. In lengthy minutes, what is not said or considered also can come back to affect the organization’s position. There is no good reason to include all of the discussion, and potentially only harm and legal liability will arise from misconstrued comments in extensive minutes.
In conclusion, the best practice of keeping meeting minutes is to include the list of standard items referenced above, the actions taken by the board, and a brief summary of reasons supporting such actions.
Details: Glassie and Deng are with Whiteford, Taylor & Preston LLP, Washington, www.wtplaw.com.