Minnesota State Bar Association

Governance Committee

Report and Recommendation

December 4, 2012






RESOLVED, that the Governance Committee, upon resolution of the Council, recommends the following amendment to the MSBA Articles of Incorporation, creating a new article, Article 9, and renumbering subsequent articles.



Council Action in Writing


Any action required or permitted to be taken at a Council meeting, may be taken by written action signed or consented to by authenticated electronic communication by the number of Council members that would be required to take action at a meeting of the Council at which all members were present, as prescribed by the Bylaws; provided that if Bylaws or statute require a higher number to take action, that such number will be required.



FURTHER RESOLVED, that the Governance Committee recommends amendment of Article 7.6.5 of the Bylaws related to action of the Council without a meeting:


7.6.5.   Action Without a Council Meeting. Any action required or permitted to be taken at a meeting of the Council may be taken by written action signed, or consented to by authenticated electronic communication as permitted by the Minnesota Nonprofit Corporation Act, by 90% a  majority of all the Council representatives. The written action is effective when signed, or consented to by authenticated electronic communication, by the required number of representatives unless a different effective date is provided in the written action. When written action is taken by less than all of the representatives, all representatives shall be notified immediately of its text and effective date, except that failure to provide such notice does not invalidate the written action. As used in this § 7.6.5, the term “authenticated electronic communication” means any form of communication, not directly involving the physical transmission of paper, that

(a)        creates a record that may be retained, retrieved and reviewed by the recipient of the communication,

(b)        may be directly reproduced in paper form by the recipient through an automated process,

(c)        is delivered to the MSBA’s principal place of business or to an officer or agent of the MSBA authorized by the MSBA to receive the communication, and

(d)        sets forth information from which the MSBA can reasonably conclude that the communication was sent by the purported sender.




Under the Bylaws adopted by the MSBA in 2011, the Board of Directors designation was moved from the Assembly to the Council.  Practically, it was never possible for the 126-member Assembly to take written action in lieu of a meeting.  However, the smaller fifteen-member Council is capable of acting by written action. 


The Council considered whether the ability to take action in writing was needed and appropriate.  The Council agreed that in most instances better decisions result from discussion among members attending a face-to-face meeting.  However, on limited occasions, when time does not permit a meeting, the Council felt it was necessary and appropriate to have the power to act in writing.  As a result, the Council adopted a resolution requesting an amendment to the MSBA Articles and Bylaws to provide this authority.


Minnesota Statute requires all members of the board to consent by written action unless the Articles of Incorporation allow for a lesser number.  The proposed amendment to the Articles of Incorporation provides that a majority of all of the members of the Council (whether participating or not) may agree to take action in writing.  In the event fewer than all of the Council members participate in the written action, taking action requires a majority of all members of the Council. No action could be adopted by the Council without at least eight votes in favor of the action.


The proposed amendment to Bylaw Article 7.6.5, incorporates into the Bylaws the power granted in the new Section 9 of the Articles.  The 90% provision is recommended for deletion. This provision was applicable to the Council before it became the Board of Directors.  Since that time, a one hundred percent approval was needed to adopt an action by writing.


Respectfully submitted,

Sonia Miller-Van Oort,

Governance Committee Chair