Remote Control

How to ensure decisions can be made without face-to-face gatherings.

With the COVID-19 pandemic virtually eliminating large gatherings for the foreseeable future, many association executives are at a loss for ways to conduct the meetings necessary to make collective decisions without endangering the health and safety of board members and other parties.

While business and nonprofits alike quickly pivoted to Zoom and other virtual platforms for education and communication, many REALTOR® associations find themselves in a proverbial Catch-22 when it comes to remote meetings. Many associations’ bylaws contain the following verbiage or something similar:

“The latest edition of Robert’s Rules of Order shall be recognized as the authority governing the meetings of the association, its board of directors, and committees in all instances wherein its provisions do not conflict with these bylaws.”

Meanwhile, Robert’s Rules of Order states the following: “Except as authorized in the bylaws, the business of an organization or board can be validly transacted only at a regular or properly called meeting— that is, as defined on pages 81–82, a single official gathering in one room or area—of the assembly of its members at which a quorum is present.”

One could interpret this to mean that if your bylaws don’t explicitly allow for virtual meetings, consult Robert’s Rules. But Robert’s Rules appears to prohibit virtual meetings unless your bylaws explicitly allow them. So, now what?

First, your association should consult legal counsel to interpret your bylaws and provide guidance on options for conducting business virtually. Your counsel should also closely examine your state’s not-for-profit laws and whether the association is permit- ted to hold meetings by telephone, video- conference, or other interactive means.

If it is determined that your association is indeed unable to hold virtual meetings, all is not lost. Your bylaws may allow the executive committee to act on behalf of the board of directors between meetings, especially in urgent matters.

In addition, you may be able to take action through the unanimous written consent of the voting body. This works exactly as it sounds: The consent must be in writing and approved by all individuals entitled to vote on the matter, with no objections or abstentions.

Once in-person meetings are able to resume, be sure to take action to amend the association’s bylaws to enable the association to be nimbler and more responsive to future needs by allowing decision-making bodies to gather virtually. Thanks to COVID-19, virtual meetings are likely here to stay.

Check out the official Robert’s Rules of Order website at robertsrules.com for updated guidance related to the COVID-19 pandemic. The site recently published downloadable sample rules for electronic meetings.

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Q: Does NAR allow virtual ethics and arbitration hearings?

A: Yes. Professional Standards Policy Statement 56 of the Code of Ethics and Arbitration Manual authorizes associations to allow certain testimony for hearings via teleconference or videoconference. It reads, in part:

“The policies and procedures established [in the manual] contemplate that parties and their witnesses will participate in ethics and arbitration hearings in the physical presence of hearing panels and the respective parties. Parties and their witnesses may request permission to participate in such proceedings via teleconference or videoconference.” (Revised 11/14)

“Parties and witnesses to ethics and arbitration hearings may be permitted to participate in those hearings by teleconference or videoconference at the discretion of the hearing panel chair. Only those parties eligible to attend the entire hearing in person would be entitled to participate ‘remotely’ for the entirety of the hearing. Witnesses may only participate remotely for their own testimony.” (Revised 11/14)

NAR policy can be interpreted to permit associations to hold virtual hearings, and divergence from historical practice may be appropriate. Given local, state, and national recommendations regarding the pandemic, including White House guidelines and Centers for Disease Control and Prevention recommendations regarding social distancing and the avoidance of in-person gatherings, virtual alternatives should be leveraged to the greatest extent possible so that professional standards matters can continue to be processed.

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