Notes on amendments to Johns Island Council By-Laws

Proposed and recent amendments (approved since 2013) may be viewed in the Council by-laws following these notes. To show or hide amendments (showing only the current bylaws as amended), click on the buttons on the top of the window.

Text addded by each amendment is shown underlined in green, and deleted text struck through in red. Further information about amendments, both proposed and approved, and additional comments on the notes below may be seen by holding the mouse over the shaded textFurther information or additional comments appear in a shaded box like this.

In accordance with the Council's request at the May meeting, I have considered how the by-laws could be amended to allow voting by email, phone, or text message on matters that arise between regular meetings and call for immediate attention. Provisions that may be included in non-profit charters and by-laws are governed by state law. The main body of statutory law relating to non-profit corporations in South Carolina is the South Carolina Nonprofit Corporation Act of 1994, South Carolina Code, Title 33, Chapter 31. Two basic procedures are described in this statute for actions taken by members without a meeting. The first is written consent:

SECTION 33-31-704. Action by written consent.

(a) Unless limited or prohibited by the articles or bylaws, action required or permitted by this chapter to be approved by the members may be approved without a meeting of members if the action is approved by members holding at least eighty percent of the voting power. The action must be evidenced by one or more written consents describing the action taken, signed by those members representing at least eighty percent of the voting power, and delivered to the corporation for inclusion in the minutes or filing with the corporate records.

(b) If not otherwise determined under Section 33-31-703 or 33-31-707, the record date for determining members entitled to take action without a meeting is the date the first member signs the consent under subsection (a).

(c) A consent signed under this section has the effect of a meeting vote and may be described as such in any document filed with the Secretary of State.

(d) Written notice of member approval pursuant to this section must be given to all members who have not signed the written consent. If written notice is required, member approval pursuant to this section is effective ten days after the written notice is given.

HISTORY: 1994 Act No. 384, Section 1.

The other allowable form of member action without a meeting is by means of a written or electronic ballot:

SECTION 33-31-708. Action by written or electronic ballot.

(a) Unless prohibited or limited by the articles or 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 written or electronic ballot to every member entitled to vote on the matter.

(b) A written or electronic ballot shall:

(1) set forth each proposed action; and

(2) provide an opportunity to vote for or against each proposed action.

(c) Approval by written or electronic ballot pursuant to this section is valid only when the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action, and 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.

(d) All solicitations for votes by written or electronic ballot shall:

(1) indicate the number of responses needed to meet the quorum requirements;

(2) state the percentage of approvals necessary to approve each matter other than election of directors; and

(3) specify the time by which a ballot must be received by the corporation in order to be counted.

(e) Except as otherwise provided in the articles or bylaws, a written or electronic ballot may not be revoked.

HISTORY: 1994 Act No. 384, Section 1; 2006 Act No. 255, Section 1, eff April 8, 2006.

Effect of Amendment

The 2006 amendment added "or electronic" preceding "ballot" throughout.

Given that action by written consent requires approval by 80% of the members and may involve a delay of 10 days to notify members who do not submit written consent, the ballot alternative appears to be the better option for voting between regular meetingsThe quorum requirements specified for written or electronic ballots in Section 33-31-708(c) do not appear well thought out, because they could actually result in an action being approved by a member's voting against it, when it would otherwise be defeated if that member simply abstained. For example, 8 members constitutes a quorum at at Regular meeting. If 7 members voted in favor of a ballot action, and no other votes were cast, the action would fail for lack of a quorum. If just one more member voted, it would pass. As such, computing the vote outcome should be based on total membership rather than votes cast.. However, the ballot itself must be delivered by the corporation, which in turn requires action by the board. As with member actions, board actions would normally take place at a face-to-face meeting. Under the current Council by-laws, the Chairman and Board decide when to hold their regular meetings.

Section 33-31-821 of the Nonprofit Corporation Act also allows a nonprofit's board of directors to take actions by written consent. This is typically desired when the action is required on short notice and it is difficult for the board to meet, but the written consent must be unanimous. Some general issues relating to email voting and telephone conferencing of non-profit boards are discussed in online articles Can Nonprofit Boards Vote By Email? (Gene Takagi and Emily Nicole Chan, and Robert's Rules On Absentee Voting (C. Alan Jennings, A significant issue discussed by Tagaki and Chan is that while most states require written consent for actions by the board of directors without a meeting, few states specifically rules that email may be used to satisfy this requirement. A search for South Carolina case law containing any reference to Title 33, Chapter 31 of the SC Code turned up no relevent cases on written consent.

Aside from the problem of getting the board to produce and distribute a ballot on short notice, a basic objection to absentee voting of any kind is that it does not allow the same opportunity for discussion as in a face-to-face meeting.A similar criticism is directed at proxy voting, since matters raised at meetings attended by proxies canot be discussed by the absent members. Moreover, if the same person is allowed to serve as a proxy for more than one voting member, that person could obtain proxies from a majority of the members and thus control the outcome of any vote, making debate pointless. The provision in the Council by-laws allowing proxies was added as a way to insure a quorum when members were unable to attend meetings, but the possibility of the same person having multiple proxies was not considered. Without a specific provision stating otherwise in an organization's charter or by-laws, Robert's Rules would preclude absentee voting. With this in mind, it is worth examining the role the Johns Island Council plays in the community.

As understood, the motivation for allowing voting on matters that come up between regular meetings is to allow the Council's position to be expressed in public forums on short notice. Although the Council's resolutions do not carry the force of law, they are given a measure of deference by city and county councils and other government agencies. We like to think this respect is well deserved, based on a belief that Council's positions represent a bona fide attempt to gauge the public's opinion on issues that concern them. The Johns Island Council hosts presentations, always open to the public, by civic groups, developers and municipal planners as well as forums for political candidates. Indeed, county and city planning staff often refer developers to the Council to get public feedback. Individual members follow local media coverage and attend public hearings to stay abreast of local issues. Some even go to examine conditions at sites of proposed development or informally survey other residents for their opinions. Passage of a resolution is the culmination of a deliberative process among members who are well informed about public opinion. The Council's reputation rests in large measure on recognition of the community input in this process.

It is certainly not unprecedented for Council business to be undertaken without the need for a vote by the members. Under the current Council by-laws, the Treasurer is responsible for paying bills, with the approval of the Chairman. The by-laws do not specifically grant the Chairman or the Treasurer discretionary authority with respect to financial matters, but where such authority exists, the law requires that they act "in good faith" and "in a manner the officer reasonably believes to be in the best interests of the corporation, and its members." (SC Code, 33-31-842). Even without a specific provision, then, it is reasonable to assume that routine disbursements do not require a vote of the full membership, and this is more or less how Council expenses are handled.

Keeping in mind that the Treasurer may pay the Council's routine bills without need for a vote by the members, it seems unnecessary to require a vote every time a member writes a letter or appears at a public meeting to act as the Council's spokesman. In fact, one of the duties of the Chairman set out in the by-laws is to act as an official spokesman for the Council. Council members can and often do send letters and emails and speak at forums. They may mention that they are Johns Island Council members, but without approval based on a motion passed at a meeting, are careful not to represent their statements as the position of the Council. Of course, a specific resolution-- for example, favoring or opposing a particular zoning application or development plan-- can and should be given greater weight than a general statement by a member acting as spokesman for the Council. When a deadline for public comment affords no opportunity for a vote at a regular meeting, however, the value of a general statement should not be dismissed. Rather than "The Johns Island Council opposes this plan" or "The Johns Island Council supports this action" an appropriate public comment (or email or letter) might begin, "This is an issue of great concern to the Johns Island Council. Because of the short notice of this hearing, however, we have not had an opportunity to discuss this specific plan at one of our regular public meetings, which take place at 7 PM on the first Thursday of every month at the Berkeley Electric Co-op...."

The effectiveness of such a general statement by a Council member would be bolstered by the mention of positions taken on similar issues that have been discussed at regular meetings in the past, or to relevant general position statements, for example the Council's Position Statement on Impact Fees. In fact, it would probably be a good idea to draft a brief statement for every resolution passed by the Council that is relevant to issues of concern in the community. The statement should explain why the Council favors or opposes the proposed plan, action, ordinance, zoning change, etc., and, as appropriate, other pertinentinformation such as how it was deliberated, any recommended conditions or alternatives, etc. Such a statement could be read into the record by a member at a public hearing, included in a letter or email to local government officials, or sent out as a press release.

The Council bylaws in their current form already allow the Chairman or 10 members to call Special Meetings. Such meetings are admittedly less convenient than a remote ballot, but they do provide a way to handle urgent business that comes up between regular meetings. In fact, nothing would preclude holding a brief meeting, for example, in the lobby of the County Council meeting room just prior to a public hearing. Since only the specific matters described in the meeting notice can be considered, a Special meeting would be an appropriate occasion for the use of proxies or absentee votes.

In light of these observations, I have proposed two alternative sets of amendments. The first would allow absentee voting between regular meetings by email, text, or phone, by broadening the use of Special meetings. The second alternative would not allow absentee voting, but instead would extend authority to act as spokesmen for the Council to Officers and Standing Committee Chairmen. Committee chairmen would also be allowed to delegate other members to act as spokesmen.

Regarding the proposed amendment to allow voting by email or other remote mechanisms, there was some concern expressed at the May meeting about the efficacy of voting by phone or text message. Specifically, voting by phone would not create a written record, and votes submitted via text message could not be verified as to their true source.

A search of applicable state law on the probity of text messages as evidence in a legal proceeding indicates that while independent corroboration as to their actual source may be required, text messages are not inherently defective in this regard. See Brown v. Brown, 412 S.C. 225, 771 S.E.2d 649 (S.C. App., 2015), in which the text message from a wife in a child custody dispute was allowed as evidence showing her awareness of the child's medical condition; and Couple v. Girl (S.C., 2012), in which text messages exchanged between the biological parents of an adopted child were accepted as evidence of whether there was intent to surrender parental rights.

With regard to both voice communication by phone and text messaging, the fact that neither provides a "paper trail" does not appear to be a significant problem. In a secret ballot or any governmental or corporate shareholder election where a large number voters not known to the administrators conducting the election or to one another, such a paper trail is regarded as an effective way to prevent fraudulent voting. Neither of these circumstances applies to votes by members on council business. Moreover, requiring the vote by remote means to be recorded in the minutes of the next meeting should allow ample opportunity to discover and correct any irregularities.