Leaks, Drips, and Spills

Does Open Source Matters, Inc. Maintain Two Sets Of Board Minutes?

21 Nov 2011
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They must, really!

In the FAQs section of the New York Charities Bureau, this Q & A is presented:

Q. Does the board have to keep minutes of its meetings?

A.  A corporation is obligated to keep, at the office of the corporation, correct and complete minutes of all meetings, including those conducted face to face and over the telephone, of its members, board and executive committee, if any.

Note: The emphasis is mine. The above FAQ is a simple summary of the New York Law which states:

§ 621. Books and records; right of inspection; prima facie evidence.

(a) Except as otherwise provided herein, every corporation shall keep, at the office of the corporation, correct and complete books and records of account and minutes of the proceedings of its members, board and executive committee, if any, and shall keep at such office or at the office of its transfer agent or registrar in this state, a list or record containing the names and addresses of all members, the class or classes of membership or capital certificates and the number of capital certificates held by each and the dates when they respectively became the holders of record thereof. A corporation may keep its books and records of account in an office of the corporation without the state, as specified in its certificate of incorporation. Any of the foregoing books, minutes and records may be in written form or in any other form capable of being converted into written form within a reasonable time.

So, correct and complete minutes.What's the problem? The minutes are correct and complete aren't they?

Not necessarily. In the May 17, 2010 board minutes, Jacques Rentzke made the following statement:

Jacques requests feedback from the board regarding the new format of the Meeting Minutes. Confidential, privileged or legal details will not be included in the Minutes.
Elin, Ryan and Dave indicate that the level of detail is fine.

Okay, okay, I am guilty too. At the time, I wasn't aware that there was no provided exception in New York State law that allowed for certain things not to be included. Most boards do not transcribe their meetings verbatim and I would suggest it isn't necessary to do so. It is required, however, that the board include within the minutes the actions of the board at the official meeting. There is no way of telling if there are board actions taken that were not recorded in the minutes we see posted. If there were, then the Secretary of the board would need to maintain a second set of minutes that contained all board actions. Of course, those minutes would be discoverable and admissible in any court proceedings.

But wait, OSM Bylaws might play a role here.

To the extent the corporation creates any of the following documents, it will, within a reasonable period of time, publish such documents for public review: annual reports on the state of the organization and plans for the coming year, minutes from all board meetings, financial reports pertaining to periods of 3 months or more, tax filings, reports of audit results.  Nothing in this provision will be construed to require the corporation to create any of the mentioned documents.

So, if the Secretary of the board created a second set of minutes, then under the OSM Bylaws, he would be obligated to publish those minutes. I guess that puts Jacques Rentzke between a rock and a hard place. I sure hope he has recorded the minutes completely including any board actions that were related to "Confidential, privileged, or legal details".

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David Huelsmann

Dave Huelsmann was Treasurer of Open Source Matters, Inc. from 2008 to July, 2010 and Joomla Forum Global Moderator from 2005 to November, 2010. Now retired, he was a senior healthcare executive who managed large and diverse clinical laboratory, radiology, electroencephalography, and centralized patient transport operations/departments in both not-for-profit and for-profit companies throughout the United States.

Dave was a Navy Corpsman who served in Vietnam while attached to Seabee battalionmcb71

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