Can the ED legally run the board?

September 14, 2009 7:07 AM

Can a non-profit executive director refuse to allow the board president to run meetings?

The board president has been told this isn't kosher, but she's a friend of the ED (which is why she was chosen for the job) and feels too intimidated to argue the issue. (She also may be uncomfortable asserting herself in this role as she has no white collar job experience herself; the ED has stacked the board with college students and members of her fraternal organization as more experienced members have resigned in frustration over the years). ED treats board members as employees (instead of vice versa) to be micromanaged (we've been told we shouldn't be emailing each other without her permission on board matters, for instance) and is easily threatened.

Said ED is very competent at running the day-to-day operations at this 6-figure-budget, human services NPO. She is a nightmare to deal with at the board level, having no management or prior NPO (or corporate) experience herself. So let's say that removing her from her position is not in the best interest of the organization at the operations level. What other recourse/legal responsibilities does the board have to reassert its proper role? Is it legal for her to be running meetings?

This is a weak BOD (obviously) though patience is wearing thin. One member has told the Board President she must be running the meetings, but again, the ED said no and the BP is unwilling to press the matter.



(Asked because I was one of the people brought onto the board who had no prior experience--I didn't realize any of this wasn't normal until recently. There's an awful lot online for EDs dealing with dysfunctional boards, but I've found very little on the opposite scenario.)

Throwaway email: [e-mail]

posted by anonymous to work & money (13 comments total)

Does this board have a lawyer? Any board, or council, whether it is govermental or corporate, should have counsel at the table to make sure Robert's Rules of Order (or whatever protocol is being used) are being followed. The executive director does not run a board meeting. The chairman of the board, or his (or her) designated replacement, is responsible for calling the meeting to order and generally making sure things run smoothly.
posted by dortmunder at 7:25 AM on September 14

Also, check the board bylaws. Every board will have bylaws that spell all of their protocol out. Consulting them should clear up this question pretty fast.
posted by dortmunder at 7:27 AM on September 14

First of all, the entire board needs to go to How To Be An Effective Board classes. The Executive Service Corps, Donor's Forum, Assn of Fundraising Pros chapter, local community foundation or Arts & Biz Council in your city will have these.

Yes, your ED can refuse to allow the Board pres to run meetings. If the Board prez allows this, she's not doing her job. This is not statutory, but will vary org to org. In the many nfps I have worked at, the power of the agenda is probably the thing least understood by people-- sometimes it's the Board, sometimes it's the ED. I have seen board meetings hijacked by lower-level employees, for instance, a secretary at one organization, whose ED always let her write the agenda. Crazy.

So, step one-- check the bylaws and see it there is anything in there that states that the ED writes agendas for the board. (btw, is ED on the board? If she is, she needs to be ex officio, no vote, as one of the functions of the board is overseeing, evaluating and setting the salary of the ED, so big conflict of interest.) BP also needs to know what the maximum size of the board is set out as in the bylaws. This is statutory in most states, and will be critical to fixing the problem. (read on)

If the ED has been able to stack the board with her friends, then this is a dysfunctional board to start with, that doesn't understand either its power or its responsbilities. For the longer term, the board needs to stack itself. Stop giving the ED full responsibility for bringing on board members. Stop making a prior relationship with ED part of the qualifications. Bring on people who are experienced as board members in your industry. (This is why you need to check the maximum size of your board. If you're already there, you're going to need to increase it.) Bad news is, recruiting board members is one of the hardest things to do in nfp.

To fix the agenda problem, the BP could just bring her own agenda and duke it out in public with the ED. Probably not the best tactic, but it's one way. A longer term solution is to wage a stealth campaign. BP could try writing the agenda WITH the ED-- start with calling ED a couple of days before the next board meeting and ask to see the agenda. If ED doesn't provide one, then she should just write her own, bring it to the meeting, and then if the ED says she's got one already, BP needs to state for the minutes, that she had asked to see it in advance, and since she didn't get it, assumed there wasn't one. Then relent and use the ED's agenda. Keep doing this every board meeting until ED relents, and shares. At this point, BP needs to change some items on the agenda-- change order, add an item, whatever. Couple meetings on, BP submits to the entire board her own agenda for the next meeting. If ED objects, back down, but then next board meeting? Send ED only, BP's proposed agenda.

Eventually ED will get the message.


Of course, none of this will work if the Board Prez doesn't grow a pair.
posted by nax at 7:28 AM on September 14 [2 favorites]

Legally, yes, unless it specifically forbids this in the bylaws. Many non-profit orgs have staff-driven board meetings, where the paid staff generates the agenda for each meeting in consultation with the board chair or president.

But this seems like a much larger issue if the board members feel that they don't have sufficient control over the agenda of the meetings. If the president can't stand up to the ED about matters at this level, how can the president provide effective governance around serious stuff?

The president and the other board members have fiduciary responsibilities that have to be fulfilled--if the ED makes it impossible for them to discuss the matters that are specifically in their remit, then they may be in violation of the bylaws and that could be problematic.

I think your board needs a new president. Also, let me recommend BoardSource as the gold standard of non-profit board resources for the US (and if you're elsewhere, perhaps contacting BoardSource and asking what their counterpart is for your country would be the quickest way to find that).

Good luck. This stuff is hard to sort out.

One way of addressing this temporarily is to appoint or elect someone who feels strongly about the issue, and who has the will and skills to clash horns with the ED about it, as vice-chair or vice-president with a specific remit of running the board meetings. That way, if it's important to keep the president in that role for whatever reason (high profile, major donor, distinguished person in field), the VP can do the "dirty work" of bringing the ED to heel.

Remember, the ED works for you guys. A good non-profit ED never forgets that.
posted by Sidhedevil at 7:29 AM on September 14

Seconding nax's good suggestion about training for the board of directors. Really, really necessary. The BoardSource site has lots of good info about this.

I know this is hard stuff to cope with, especially for organizations in transition. (This was part of what I did in my non-profit consulting practice, and it was the hardest work I did by far.) But it's really important for the organization that you folks resolve these issues--fortunately, there are good resources out there.
posted by Sidhedevil at 7:34 AM on September 14

follow-up from the OP

I looked up our bylaws and they clearly state: "At all meetings of the Board, the President of the Board shall preside as Chairperson. If the President shall be absent, the Vice-Chairperson or a Chairperson chosen by the Directors shall preside. " The (young) lawyer who revised the bylaws is the one who unsuccessfully tried to get the ED to cede this role to the BD.

At the same time, the ED has used the bylaws to forbid a BOD member from personally donating a $25 item to an outside organization helping to run a fundraiser for this organization (she claimed it was "making an unauthorized purchase on behalf of [nonprofit]", and to insist that only a select number of board officers have permission to email the BOD as a whole without her permission.

posted by jessamyn at 8:36 AM on September 14

This sounds like a tough situation. In the ideal world, the Board of Directors deals with "big-picture" stuff and sets the direction of the organization, while the staff (led by the Executive Director) deals with the details (while providing the BOD enough information to make their decisions).

In most organizations, the top-level staff reports TO the Board of Directors. So (weird bylaw provisions notwithstanding) the endgame of conflicts between the BOD and an Executive Director is a Board vote to remove (fire) the ED. That's not an endgame that it sounds like you want to head for but if you are trying to build consensus for action, keep in mind that that is where you might be headed.

Just abstractly, it seems that a Board that can't email each other without "permission" of the ED is a dysfunctional board. As a Board member, communication is essential. There might be official mailing lists or resources that are off-limits, but why can't you just email individuals or groups separately? (That is slightly passive-aggressive and does not resolve the underlying conflict -- but it gets you communicating, which seems the most important thing.)

When you say "email the entire BOD" make sure you're just talking about communication. Trying to call for a vote on action items, schedule stuff, etc. -- that probably requires a quorum and levels of formality that can't or shouldn't be done via unilateral email. It's possible that you and the ED have quorum / formal "resolution" or "action" requirements mixed up with just plain old fashioned "what do you know/think about xyz" sort of stuff.
posted by QuantumMeruit at 8:57 AM on September 14

DTMFED

I cannot imagine a situation where "forbidding a BOD member from personally donating a $25 item to an outside organization" would be anything close to appropriate. Board relations are not incidental to the job of the ED. This sounds like a gaping inadequacy in her job performance. It's a great time to be hiring EDs... just saying.
posted by violinflu at 9:11 AM on September 14

I looked up our bylaws and they clearly state: "At all meetings of the Board, the President of the Board shall preside as Chairperson. If the President shall be absent, the Vice-Chairperson or a Chairperson chosen by the Directors shall preside. " The (young) lawyer who revised the bylaws is the one who unsuccessfully tried to get the ED to cede this role to the BD.

Then someone needs to grow some gonads. Get the board members to create an agenda without input from the ED (have an item on the agenda saying "Report from the Executive Director"). Then have the president, or whoever has some gonads, send the agenda to the entire senior management staff with the covering letter, "In accordance with the bylaws, X (president or vice-president) will be presiding at the next Board meeting. Here is the agenda."

Then, when you get to the board meeting, the president (or whomever she designates) has to follow through. You do your meeting. When you get to "Report from the Executive Director", she can have her say.

If she can't deal with that, she's not qualified to be an executive director of a non-profit, full stop.

Now, if the issue is that the president doesn't have the gonads to follow through on this, have her appoint someone to be the follow-through person. They just have to say, "{President} has asked me to take the chair for today."
posted by Sidhedevil at 9:17 AM on September 14

My advice is, get off that board, this is a seriously dysfunctional organization, being associated with it (unless you're willing to mount a campaign to clean house) will hurt you professionally.

Sidhedevil laid out a good plan, follow it.

I've been the Assistant Director and then Executive Director of a non profit (with a million $$ budget) for nearly 20 years... trust me, this ED is doing the organization more harm than good. And the composition of the Board (too many of her "friends") creates conflicts of interest that are not ethical or acceptable. Bottom line, funders will get wind of this and this NPO will no longer be around.

Next question...who's doing the ED's evaluation and approving the contract?
posted by HuronBob at 9:39 AM on September 14

I would suggest that the Board (the Board! Not the ED!) invite an outside expert on Board Development in to do a workshop/presentation on "Effective Governance" or even "The Role of the Board of Directors" since it seems like starting with the basics might be good. If you contact resources like BoardSource, they might be able to steer you in the right direction. The groundwork for this presentation should be done by the Board Development Committee, if you have one - if you don't, get it created - and whoever you bring in should be briefed on the situation ahead of time.

The problem you are facing is that the ED has stacked the Board with friends, which is allowing her to run the show - I'm guessing that most of the Board members are not aware enough of their responsibilities and obligations to be willing to "fight" with a friend. However, BODs do have obligations and liabilities, and having someone from outside point those out should help shake off the lethargy of the Board.

However, if getting this to happen is too much of a struggle/no willingness from other Board members to support this, I would say you should get off the Board.
posted by never used baby shoes at 9:53 AM on September 14

The greatest irony here of course is that the people who stand the most to lose from this state of affairs are the BoD members themselves, due to their legal and fiduciary duty to manage and accept responsibility for the affairs of the organization.

No doubt the behaviour of the ED is representative of how the organization itself is run - there is bound to be sloppy bookkeeping and accounting, if not outright monkey business. The finance committee (if there is one) needs to ensure a proper audit is conducted, and quickly fi any problems that come up.

Otherwise the lot of them, including the Chair, are going to be held personally, legally and financially liable for whatever tricks this ED is up to.

I wonder how many of the BoD members realize how dangerous of a position they are in.
posted by KokuRyu at 12:10 PM on September 14

Bring copies of the bylaws to the next meeting with the relevant passage highlighted.
posted by Jacqueline at 1:38 PM on September 14