How to Make Ch-Ch-Changes In Board Votes

“The board vote doesn’t change just because a couple of board members have changed their mind as to how they wanted to vote,” says Stuart Saft, a partner in the law firm Holland & Knight. “They have to have another meeting, even if it's a telephone conference call meeting. The fact that the board president or any board member went around (after the vote) and politicked among the members of the board is not that unusual. But you have to go through the formalities of actually having a meeting and not just saying, ‘Well, I was able to get someone to agree to X and therefore it's now going to be X.’”

Scott Greenspun, a principal in the law firm Braverman Greenspun, agrees. “The board president doesn’t have the unilateral authority to change the vote,” Greenbaum says. “It's not within the powers that a board president would have. They would have to have another meeting in which there would have to be discussion, and then they would have to vote formally as to whether the board wanted to reverse its prior decision.”

If the board wants to revisit the vote without coming together in a formal meeting, a conference telephone call could be held, provided it meets one criterion.

“At the very least,” says Saft, “you would need to have a telephone conference call in which all of the board members were present on the line at the same time to have a new vote taken. Minutes have to be taken of that interim meeting, or special meeting, along with the outcome of the vote.”
 
Of course, even if the original vote is upheld during the conference call, there is always the possibility of revisiting the issue at the board’s next meeting.

“Even if the original vote (to hire Zenith) stood, at the next board meeting it certainly could be raised again and the board could vote to (hire Acme),” Saft says. “So the fact that the president went out and politicked among the members of the board does not mean it’s being decided for the last time.”