A valid consent resolution is effective the same as if the board had met and a majority had approved the action item. But if even one board member will not consent, the resolutions are ineffective.
Consent Resolutions vs. Email Chains
Many community association professionals (including lawyers), rather than advising boards to use consent resolutions, encourage board members to use emails to approve a course of action and then ratify that decision at the next board meeting. While there is no doubt that such an approach is valid once the ratification process is complete, it is merely an approximation of the consent resolution process which is set forth by statute: The directors or incorporators may take organizational action without a meeting if the action taken is evidenced by one or more consents in the form of a record describing the action taken and executed by each director or incorporator.1
Why it Works
There are at least four reasons to prefer the use of consent resolutions over the unanimous email + ratification approach: 1. It protects sensitive information contained in email strings. For example, if a board is voting to proceed with a foreclosure lawsuit (which is now mandatory by way of recent changes to the laws governing all Washington community associations), the association would not want attorney-client privileged email communication to become part of the formal association consent to proceed with foreclosure. To prove that the consent was valid, the entire email chain with the sensitive information may have to be disclosed.
2. It prevents challenges based on the delay between an email consent and formal ratification. If there is some problem with the email record (including whether a board member validly “executed” the
1 2021 Wash. S.B. 5034 §§1307(b)(3) & §2318 (set to replace the current statute, RCW 24.03.465, as of January 1, 2022).
consent) and time sensitive action is taken before the decision is ratified, the board decision is subject to scrutiny by the email approach. Not so for the consent resolutions method.
3. A formal consent resolution is more likely to become a record. How many decisions have been made by way of unanimous email but then not ratified or forwarded to an association’s records custodian?
4. It is less likely to be challenged overall. Being able to provide a single document that clearly sets forth the decision of the board is less likely to be challenged. Take, for example, a long email chain spanning a week. By the time the final decision is reached, one board member’s understanding of what was being voted on may be different than another’s. A carefully drafted consent resolution makes it obvious what is being voted on. Moreover, given the longstanding use of consent resolutions in the business world, lawyers who might be reviewing board decisions for errors are familiar with consent resolutions and less likely to question their corporate validity.
After a long email chain spanning a week, one board member’s understanding of what was being voted on may be different than another’s.
Accessible and Ecological
Consent resolutions need not require board members to have access to printers and scanners.
Easily obtain unanimous signatures on digital consent resolutions, without felling a single tree.
Popular electronic signature platforms such as DocuSign®, HelloSign®, and Adobe Sign® allow tech savvy boards and management companies to easily obtain unanimous signatures on digital consent resolutions without felling a single tree.
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