T39 Executive WorkshopPart II: Board Governance and

Legal & Ethical Issues

Dennis R. Burt, CPA, CVAMFA Board Chairmandburt@burtcpa.com

What is Governance?

Governance means to steer; set direction

What is Board Governance?

Nonprofit organizations are governed by a volunteer Board of Directors, who are the Legal Guardians of the Organization.

They are granted the AUTHORITY to make decision on behalf of the organization, and must be ACCOUNTABLE for organization performance.

Overview – Topics to Discuss

1. Authorities Governing Boards of Directors

2. Your Duties and Obligations as Board Members – Standard of Care

3. Liability as Directors4. Conflicts of Interest5. Other Statutes of Interest6. Best Practices

Authorities Governing Your OrganizationHierarchy of Laws

United States Constitution Federal Laws and Regulations (Supremacy

Clause) New Mexico Constitution New Mexico Laws

MFA-Specific Provisions Rules & Regulations (adopted by Board) By-laws (adopted by Board) Policies & Procedures (adopted by Board) Board Resolutions Board Actions

Directors’ Liability

Limitations on Liability Statutory Limitations▪ Liability Insurance for actions taken in the

performance of duties▪ Nonprofit Corporations Act

Indemnification▪ Bylaws

Duties & Obligations as Board Members

Duty of Care: “Ordinary Prudent Person” Business Judgment Rule But, if you have knowledge, act on it Can rely on:▪ Competent officers and employees▪ Competent professionals (accountants,

lawyers, financial advisors)▪ Other Board Members & Committees

Fiduciary Duty: No “self-dealing”

Conflicts of Interest

Ethical Principles of Public Service NM Governmental Conduct Act Fiduciary Duties

BylawsCode of Conduct (Policies &

Procedures)

Other Statutes

1. NM Open Meetings Act

2. NM Inspection of Public Records Act

3. Human Resources

4. Consumer Privacy Laws

5. Mortgage Laws

6. Securities Laws

Best Practices

Board authority is collective. Individual members have no

authority.

The President/Board Chair is the elected spokesperson for the Board.

Key Roles of the Board

Key Roles of the Board

• Determine and articulate the Mission and Purpose

• Set organizational direction (Strategic Planning)

• Provide oversight (Finances and Executive Director)

• Ensure adequate resources (Financial and Human)

• Enhance agency’s public standing

Board Responsibility to the Mission

• Define the organization in both the present (what we do) and future (what results we want to achieve).

• Approve or affirm the mission.• Approve or affirm the key goals that will result in

mission accomplishment or vision actualization.• Ensure that operating plans and strategies lead

to attainment of these goals.• All other responsibilities flow from and depend

on the fulfillment of the mission.

Board Responsibility to Leadership

• Select and support the individual empowered to lead the organization. Boards must reach consensus on the chief executive's job description and undertake a careful search process to find the most qualified individual for the position.

• Support the executive and review his or her performance.The board should ensure that the chief executive has the moral and professional support he or she needs to further the goals of the organization.

• It is the responsibility of the executive to transform the mission from concept to action and measurable outcomes.

Board Responsibility to Financial Health

• Formulate policies regarding financial reporting and controls, control and reporting of contributions and donations, and financial auditing.

• Select independent auditor, review, and approve audit report. Approve financial investments and financing choices.

• Monitor and appraise revenues, expenditures, and cash position. Ensure compliance with board financial policies.

Ensure Adequate Resources

One of the board's foremost responsibilities is to provide adequate resources for the organization to fulfill its mission. The board should work in partnership with the chief executive to assure the financial stability of the organization.

The board, in order to remain accountable to its donors, the public, and to safeguard its status, must assist in developing the annual budget and ensuring that proper financial controls are in place.

Accountability to the Public

Two Aspects of Sarbanes-Oxley are especially applicable to nonprofits:

1. Strengthened whistleblower protection

2. Retention of documents related to lawsuits

Board Responsibility to Operations

• Approve policies regarding personnel, facilities, maintenance, safety, financial controls, and other legal requirements.

• Approve all policies formulated by manage-ment that involve legal, regulatory, or external, issues.

• Appraise and audit operations to ensure compliance with board operating policies.

:

Board Responsibility to Organization and Development

• Formulate policies regarding board member selection and expectations, board member orientation, board development, board committee assignments, board planning and performance evaluation.

• Develop a board information system to provide the information needed to carry out the board's oversight role. Appraise board performance.

• Directors and Officers Insurance• Financial Audit• Legal Audit• Process for Determining Reasonable,

Yet Competitive Compensation for the CEO/ Executive Director

• Policies Conflict of Interest Policy and Annual

Disclosure Whistleblower Policy Document Retention Policy

Protecting the Organization

Mission: Can each member quote the mission? Do you have an “elevator” speech? Is it reviewed annually?

Meetings: Are board meetings productive? Agenda and reports distributed prior to the meeting in

order to allow for full review? Board attendance policy in place and followed? Bulk of meeting spent on important issues? Board members actively engaged in the meeting? Is a standardized committee report form used? Board decorum

Board Evaluation

(continued)

Board Development: Board member and committee job descriptions? Board responsibility (governance) vs. management

responsibility clearly understood? Matrix of strengths and needs for board recruitment? New board member orientation?

Management Oversight: CEO/ED evaluated annually? Annual compensation analysis? Succession plan? Policies reviewed and approved? Difference between management oversight (governance) vs.

management responsibility clearly understood?

Strategic Planning: Does the plan exist? Is the plan relevant/current; support the mission?

1. Establish committees when issues are too complex and/or numerous to be handled by the entire board.

2. For ongoing, major activities, establish standing committees; for short-term activities, establish ad hoc committees that cease when the activities are completed. Standing committees should be included in the by-laws.

3. Committees recommend policy for approval by the entire board.

Committees

(continued)

4. Committees make full use of board members' expertise, time and commitment, and ensure diversity of opinions on the board.

5. They do not supplant responsibility of each board member; they operate at the board level and not the staff level.

6. Committees may meet monthly (this is typical to new organizations, with working boards), every two months, or every three months; if meetings are not held monthly, attempt to have committees meet during the months between full board meetings.

7. Minutes should be recorded for all board meetings and for Executive Committee meetings if the Bylaws indicate the Executive Committee can make decisions in place of the board when needed.

The larger the organization is, the easier it is to define the boundaries between the board and staff.

Governance determines the “WHAT”, creates the Vision

Management determines the “HOW”

Governance vs. Management

Resources

• Allison, Josh, Sheehan & Sheehan, P.A.• Act Council of Social Service, Inc., www.actcoss.org.au• Board Source, Building Effective Nonprofit Boards,

www.boardsource.org• Cullinane Law Group, www.cullinanelaw.com• Governance Matters for Effective Nonprofits,

www.governancematters.org• Great Boards for Small Groups, by Andy Robinson• Kentucky Nonprofit Network (for examples/sample

forms and policies), www.knn.org• New:Helping Nonprofits Make a Diffference,

http://new.org