The Importance of Board Attendance
by Gene Takagi, The Law Office of Gene Takagi
A board of directors is charged with providing ultimate oversight over the activities and affairs of its organization. Each director must discharge such duties in good faith, in a manner the director believes to be in the best interests of the organization, and with due care. Failure to regularly attend board meetings likely signals a director's inability or unwillingness to meet the director's fiduciary duties to the organization and its mission.
The most important factor in encouraging board attendance is to ensure that meetings are productive and valuable to the organization. Directors are more likely to attend meetings at which they believe their participation will be constructive. While I save a more comprehensive discussion of holding effective meetings for another post, here are some keys:
- Have a capable chair who can effectively preside over the meeting and elicit the participation of the directors.
- Have basic rules in place that are consistent with the organization's core values (but be careful of adopting formalized procedures like Robert's Rules without a full understanding of all of the procedures).
- Predetermine the goals of the meeting (and be mission-focused).
- Develop and distribute at least several days in advance a detailed agenda for the meeting, including the actions required to be taken, and supporting materials.
- Provide opportunities for each director to contribute relevant information to the organization and the board with respect to major issues, opportunities and threats (this may be collected and distributed in advance of the meeting -- the chair may then choose to focus on important and/or recurring issues at the meeting).
- Manage time appropriately and respectfully.
- Evaluate the effectiveness of meetings.
A nonprofit's bylaws may contain provisions to encourage board attendance. Quorum requirements may be established to ensure that board meetings can only take place with the participation of a majority or supermajority of directors. If the quorum requirements are set too low, a small percentage of directors may be able to take important actions without the input and vote of a majority of the directors. For example, in the case of a board with 12 directors and a quorum requirement of 40%, five directors may hold a meeting, and an affirmative vote of three may constitute a board action. By increasing the quorum requirement to a simple majority (i.e., >50%), seven directors would be required to hold a meeting, and four votes for an action. If a quorum is defined as 60%, eight directors would be required for a meeting, and five votes for an action. The higher quorum requirements would (1) send a signal to directors, prospective directors, and others that regular board attendance is expected; and (2) ensure that a very small percentage of the board could not pass actions that impact the organization. However, boards must be careful not to set its quorum requirements so high as to jeopardize the board's ability to take important actions in a timely manner.
The bylaws may also provide for the automatic removal (or deemed resignation) of directors who either miss a specified number of meetings or fail to attend a specified number of meetings. A board may have the right to remove a director with or without cause under state law and the organization's bylaws, but such actions may be highly sensitive, politically charged, and not seen as a viable option except in extreme circumstances of director misconduct. An automatic removal provision linked to attendance may allow for the pruning of absentee directors without an affirmative board action for removal and loss of face of the removed director. However, as nonprofit attorney Don Kramer points out in Nonprofit Issues, such provisions may not be enforceable, particularly if poorly drafted. One key to a valid automatic removal provision is not to tie the removal to a number of "unexcused" absences because without written evidence to the contrary, it may be argued that the board excuses every absence. Instead, the removal provision can provide for board discretion to waive the automatic removal provision under certain defined circumstances.
A nonprofit may also adopt a board attendance policy outside of its bylaws which explicitly defines the organization's expectations of its directors. Such policy may be included in the director's job description and given to each director and prospective director. Carter McNamara provides a sample board attendance policy in the Free Management Library.
Board attendance is directly correlated to board participation and thereby to the success of the organization in furthering its mission. Creating and maintaining a board culture that expects the participation of its directors in productive meetings will increase the engagement of the board. And an engaged board is one of a nonprofit's most valuable assets.
Contact Gene at http://www.attorneyfornonprofits.com/