Clarifying proxy voting. (Legal).

Q: Can a nonprofit director vote by proxy?

A: No. A nonprofit director may never vote by proxy in a board meeting because of the special fiduciary duty imposed by law. A director is required to act in the best interest of the association by applying all of his or her accumulated experience and knowledge to the issues that come before the board, via the exercise of the director's independent and informed judgment. To fulfill that fiduciary duty, the director is expected to

* read all background material provided by staff;

* attend board meetings;

* contribute knowledgeably and productively to discussion of issues at the board meeting;

* consider thoughtfully all valid points made during the discussion; and

* vote in the best interest of the association.

A director cannot fulfill that duty by voting by proxy. However, if unable to attend a board meeting in person, a director can attend telephonically. Virtually all states allow telephonic participation and voting by a director, if all individuals in attendance are able to hear one another. In that way, all directors can contribute knowledgeably and productively to the board discussion and consider thoughtfully all points made by other board members before voting.

On the other hand, nearly all state nonprofit statutes allow an association member to vote by proxy at a membership meeting, unless the articles or bylaws state otherwise. Where the members elect directors or officers, the bylaws may even allow these elections to be conducted by mail.

Submitted by Mark E. Truesdell, an attorney with Beving, Swanson, and Forest PC, Des Moines, and a member of ASAE's Legal Section Council. The "Legal" item is not intended as legal advice but rather as an educational overview.