Last summer we published a blog article on safely conducting community association business during COVID-19. Most of the advice was directed towards membership meetings. For example, many associations decided to hold board elections without a meeting by written ballot, and then they called virtual townhalls to announce the results and satisfy the other annual meeting requirements. Fast forward a year later, many associations are sticking to this procedure—or at least a hybrid version by sticking to board elections without a meeting.

Some have raised procedural concerns about conducting board elections without a meeting by written ballot and calling an in-person annual meeting in the same year. This is because many association bylaws require the opportunity for board nominations from the floor during an annual meeting. However, this is redundant if the election has already taken place ahead of the annual meeting. In our opinion, absent any language in the governing documents that states otherwise, the potential conflict would probably be resolved in favor of the board elections without a meeting by written ballot.

Remember, if the governing documents are silent on taking action without a meeting, the Georgia Nonprofit Corporation Code (“Nonprofit Code”) may act as a gap filler and allow the community association to do so. For example, O.C.G.A. § 14-3-708(a) reads as follows: “Unless prohibited or limited by the articles of 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 ballot in writing or by electronic transmission to every member entitled to vote on the matter.” (Emphasis added). As such, the foregoing authority (i.e., whether express in the association’s governing documents or used directly from the Nonprofit Code), would probably trump any argument that board elections have to take place during an in-person annual meeting due to any “nomination from the floor” language in the bylaws.

To successfully make this argument, however, the association probably needs to show it gave every potential candidate an equal opportunity to run for the board. This can be addressed in two ways:(1) sending out a call for nominations ahead of the written ballot being prepared and distributed to the membership; and (2) leaving blank spaces for write-in candidates on the written ballot for every open position on the board. For example, if three director positions are up for election, the written ballot should contain at least three blank lines for write-in candidates (in addition to the printed nominees that came in ahead of time). Doing both of these things as part of the elections without a meeting should counter any fairness arguments related to not having nominations from the floor during the in-person annual meeting.

Finally, do not forget that all governing documents are not drafted the same. For example, there may be provisions in the bylaws that require written consent by 100% of the membership in order to take action without a meeting. Since achieving this threshold is highly unlikely for any community, the board elections for associations with this language should probably take place during the in-person annual meeting. If you are unsure whether your community can proceed with board elections without a meeting and an in-person annual meeting in the same year, it is always best to check with your association attorney.