16-6a-709. Action by written ballot

(1) Unless otherwise provided by the bylaws,fn1 any action that may be taken at any annual, regular, or special meeting of members may be taken without a meeting if the nonprofit corporation delivers a written ballot to every member entitled to vote on the matter.

(2) A written ballot described in Subsection (1) shall:
     (a) set forth each proposed action; and
     (b) provide an opportunity to vote for or against each proposed action.

(3) (a) Approval by written ballot pursuant to this section shall be valid only when:
            (i) the time, as determined under Subsection (8), by which all ballots must be received by the nonprofit corporation has passed so that a quorum can be determined; and
            (ii) the number of approvals equals or exceeds the number of votes that would be required to approve the matter at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot.
     (b) Unless otherwise provided in this chapter or in accordance with Section 16-6a-716, for purposes of taking action by written ballot the number of votes cast by written ballot pursuant to this section constitute a quorum for action on the matter.

(4) All solicitations for votes by written ballot shall:
     (a) indicate the number of responses needed to meet the quorum requirements;
     (b) state the percentage of approvals necessary to approve each matter other than election of directors;
     (c) specify the time by which a ballot must be received by the nonprofit corporation in order to be counted; and
     (d) be accompanied by written information sufficient to permit each person casting the ballot to reach an informed decision on the matter.

(5) Unless otherwise provided by the bylaws, a written ballot may not be revoked.

(6) Action taken under this section has the same effect as action taken at a meeting of members and may be described as such in any document.

(7) Unless otherwise provided by the bylaws, a written ballot delivered to every member entitled to vote on the matter or matters therein, as described in this section, may also be used in connection with any annual, regular, or special meeting of members, thereby allowing members the choice of either voting in person or by written ballot delivered by a member to the nonprofit corporation in lieu of attendance at such meeting. Any written ballot shall comply with the requirements of Subsection (2) and shall be counted equally with the votes of members in attendance at any meeting for every purpose, including satisfaction of a quorum requirement.

(8) (a) Members shall be provided a fair and reasonable amount of time before the day on which the nonprofit corporation must receive ballots.
     (b) An amount of time is considered to be fair and reasonable if:
            (i) members are given at least 15 days from the day on which the notice is mailed, if the notice is mailed by first-class or registered mail;
            (ii) members are given at least 30 days from the day on which the notice is mailed, if the notice is mailed by other than first-class or registered mail; or
            (iii) considering all the circumstances, the amount of time is otherwise reasonable. 


Enacted 2000, ch. 300, § 66, eff. April 30, 2001. 
Amended: 2001, ch. 127, § 5, eff. April 30, 2001;  2001, 1st Sp. Sess., ch. 13, § 1, eff. July 5, 2001;
2007, ch. 315, § 3, eff. April 30, 2007;  2010, ch. 378, § 243, eff. May 11, 2010.

 

FN 1.  The qualifying phrase here, "[u]nless otherwise provided by the bylaws," means any vote that may be held at a meeting can be held without a meeting by written ballot, unless the bylaws say otherwise. 

It is very common language in bylaws to state something like, the members may do "this or that" if members holding a majority of all voting rights vote to approve this or that at a meeting held for that purpose.  Does that language provide "this or that" may only be voted on at a meeting?  No.  That language does not sufficiently "provide otherwise" than the statute's express authorization that any vote that can be held at a meeting may be held without a meeting. 

The statute so clearly and specifically authorizes any vote that may be held at a meeting to be held without a meeting that in order for the bylaws to "provide otherwise," the bylaws need to be equally specific.  For instance, if the bylaws state, "these bylaws may only be amended at a meeting where a vote of a majority of the total association voting rights vote in favor of the amendment," in that case, the word "only" clearly "provides otherwise" from the statute and a meeting is required.  But simply authorizing a vote for some specific action to occur at a meeting does not sufficiently "provide otherwise" and that action may be voted on without a meeting by written ballot under this section.


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