Question Of The Week: Is it legal for recordings to serve as the official minutes of board meetings?
Editor’s Note: Each week, non-profit expert Don Kramer will answer a question about non-profit law or governance.
QUESTION: Would it be legal to use a recording of our board meeting as the official minutes of the meeting?
ANSWER: Assuming you have the consent of the directors and others attending the meeting (which may be required to record the meeting in some states), it may be legal, but it wouldn’t be very wise. Goldilocks would be very unhappy. It would be providing both too much information — probably much too much — and, most likely, too little.
There is no specific legal standard for requirements of minutes. (See Ready Reference Page: “Preparing Minutes of Board Meeting is Usually More Art than Science”). But virtually all commentators believe there should not be a verbatim he-said-she-said attempt to attribute every sentence to a board member, and most agree that written resolutions and other presentations should be included in the record even if not read aloud at the meeting. Minutes are intended to provide a record of the issues a board has discussed, often the arguments in support of or in opposition to a proposal, what action, if any, the board may have taken, and who voted and how. They also provide an opportunity for the board to concur in the accuracy of the record when the minutes are approved as written or corrected.
If the recording is only audio and not video, it may be impossible to tell in five or ten years who actually said or did the very things that you want attributed and recorded. Whoever listens later may not be able to hear everything or may not recognize the voices of people no longer active with the organization. Even with video, it may be impossible to see who was talking at the moment. More importantly, no one should have to listen to a tape for an hour or two to find out what happened when the information could be available by reading written minutes for a few seconds. If you don’t keep a table of contents list for each session, someone might have to listen for hours just to determine when a certain action actually took place.
Maintaining a permanent recording of the entire discussion will also undoubtedly chill the discussion. Consider the director who does not want to be recorded for all time as saying that Joe X is a total jerk who can’t be trusted. The board should have that information in making a decision on Joe’s proposal, but may not get it if there is a chance that Joe will learn exactly who said what at a later date.
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What about the discussions of conflict of interest situations where directors have left the room during the discussion pursuant to the organization’s conflict policy? Do you pause the recording and lose the gist of the discussion forever, or do you just tell the directors, who have a legal right to listen to the “minutes,” not to listen the part between minute 25:10 and minute 35:48? What about executive session discussions about the CEO’s evaluation or attorney-client privileged discussions about a sexual harassment claim or litigation?
Many organizations record the meeting to help the secretary draft accurate minutes for approval at the next meeting. They don’t normally retain the tape on a permanent basis. There is no need ever to pay for a transcript. And they end up with a contemporaneous record of what the board did or did not do that is easily reviewed at any time as the agreed-upon permanent record of the organization.
