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Is it Legal to Have an Ex Officio Director on Your Board?

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Do you have an Ex Officio Director on your board? Do you allow honorary directors on your board but don’t require (or allow) them to vote? If you answered “yes” to either of these questions, then you may be operating out of compliance with an important nuance found in California’s Nonprofit Corporations Code.

Fortunately, there are simple solutions to clear up these issues. Let’s explore the rules and steps to ensure that your organization is in compliance:

Non-voting board members cannot serve on California nonprofit boards.
Gene Takagi states, “any person entitled to attend board meetings without a vote is not a board member at all.” Non-voting board members can lead to confusion (do they count towards a quorum?) and can mislead other board members (do their opinions matter if they can’t vote?).

 To fix it: Move non-voting board members onto an Advisory Committee. Or, if you’d like to extend voting rights to these individuals, review your bylaws to make sure you have room for more board members and revisit the process of electing new board members. Your board can vote to bring them on as regular board of directors. If your bylaws state that non-voting board members are allowed, contact Spokes for a Bylaw Review to correct your bylaws today!

Ex Officio Directors automatically hold a position on your board because of a position that they hold outside of the board.
It’s rare to need Ex Officio Director positions in 501c3s. This position is more common in 501c6s, such as Chambers of Commerce, where the CEO /Executive Director often holds a position on the board. For further clarification, the NEO Law Group outlines many scenarios where this arrangement might make sense. However, if your organization labels non-voting board members as Ex Officio, you’ll want to correct this immediately.

 To fix it: Either (1) move non-voting members onto an Advisory Committee, or (2) invest them with the same voting rights and responsibilities of every other board of director serving your organization. To stay in compliance, ensure that your board policies, bylaws, and culture do not limit the actions of Ex Officio board members.

Honorary Director, Director Emeritus, and Advisory Director are misleading titles.
The term “director” is a legal definition that sets forth duties of care, loyalty, and obedience specifically for board members.

 To fix it: Identify new terms to honor these special advisors in your organization. To stay clear on the roles of your organizational volunteers, be certain not to use the word “director” for anyone who doesn’t serve on your board of directors.  

Advisory Boards are actually Advisory Committees.
Only one board can exist in your organization, and that is the board of directors.

 To fix it: Simply update your bylaws and policies so all advisory bodies are labeled as committees.

Staying in compliance with the Nonprofit Corporations Code is critical to your organization’s success. Your board of directors and advisory committees will function more efficiently once you clarify and adhere to these important regulations. If you have questions about board of directors versus advisory or honorary roles, reach out to Spokes for support at 805-547-2244 or [email protected].

Good Strategies for Bad Board Members

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“Jake” was eager to get involved with his favorite nonprofit’s outreach program, so he jumped at the invitation to become a board member. Once on the board, it became apparent that he had his own agenda: he did not understand the organizational mission and goals, wasn’t prepared at board meetings, and became combative when other directors disagreed with him.

Jake was not a good board member, and something had to be done.

It’s an unfortunate situation to find yourself on a board with a troublesome, obstructive person. Often, organizations invite these good-hearted people onto boards because they have community connections, free time, or are simply passionate about the organizational mission. Many don’t realize that board service is a big job which requires an understanding of legal and governance responsibilities, as well as some leadership skills.

Not every volunteer is a good fit for a nonprofit board of directors, and it can be difficult for these individuals to recognize their own shortcomings. In the article, “12 Reasons Why You Should Gracefully Resign from a Nonprofit Board”, Gene Takagi writes, “failure to meet your duties may be holding back the organization from better advancing its charitable mission and serving its intended beneficiaries.” Jake clearly did not understand his role, and his presence was reducing organizational efficiency.

To reduce the risk of inviting a person to serve on your board who doesn’t understand their role, provide them with a clear job description prior to their start date. This reduces the chances that they will be surprised about time, energy, and resource expectations. You can email Spokes for a board of director job template.

A board needs to operate as a whole unit to accomplish its very important work. When one member shirks their duties, the entire board suffers. There are a few ways to work through board member challenges.

  • Meet 1-1
    If you have a “Jake” who keeps the board in disarray, the board chair, and another executive committee member can use conflict resolution techniques to have a personal conversation with the member to try to understand and alleviate the issues.
  • Use term limits
    If personal life challenges or volunteering fatigue are affecting a board member, board service term limits provide a non-confrontational way to ease ineffective or challenging directors off the board.
  • Look to your bylaws
    Your bylaws should clearly state reasons to remove a board member, such as unexcused absences, unruly behavior, or conflicts of interest. If a director can’t accomplish their duties due to a temporary problem, a short-term leave of absence might be a solution. However, if this is disruptive to board business or causes quorum issues, it might be best to ask the person to resign.

Nonprofit organizations need strong board leadership so organizations can provide crucial services for our community. Spokes members who are eager to learn about board service responsibilities can log in on Spokes website to watch the Best Practices in Nonprofit Management video series. We recommend watching them during board meetings for full participation. These short, accessible videos will ensure that your organization is meeting all federal compliance requirements, achieving the highest standards of responsible governance and operating with full accountability to your donors, clients, and employees.

Does Your Board Work or Govern?

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Do you know if your board is a working board or a governing board? Although we use these terms all the time, this is a trick question! All boards are governing boards. Their first and foremost responsibility is managing the organization: making policy and strategy decisions, overseeing and monitoring organizational performance, and ensuring accountability. Volunteer-run or small-staffed organizations’ board members may also have working responsibilities in addition to governance responsibilities, such as program delivery. Because program delivery is often the most fun part of the job, it’s natural to want to focus your time and energy on direct service.

However, things get sticky when procedures, policies, and roles aren’t clearly defined. When board members disagree on the difference between the “must do” responsibilities and the “nice to do” activities, it can cause friction or result in compliance issues.

It may be time to review your activities and ensure that governance comes first if:
• your board meetings continually go off topic,
• committee updates take more than ten minutes of a board meeting, or
• your board spends more time discussing details than big picture items.

Spokes’ Board Academy provides the perfect opportunity to explore:

• Board Member roles and responsibilities
• Governance to achieve your mission
• Legal responsibilities of board service

Whether you’ve served on your board for one year or ten years, this training will give you new tools and knowledge to make your board function more effectively.

Want to learn more about working versus governing boards? Compass Point has more to say on the subject here: https://www.compasspoint.org/board-cafe/working-board-vs-governing-board

From the Top: Executive Director Performance Evaluations

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Calling all board members! Did you know that evaluating your executive director is a key board responsibility? Evaluations foster clear communication about the boards’ expectations while giving the executive director an opportunity to weigh in on those expectations. Evaluations are also a critical tool for reviewing and setting the executive director’s pay. They open the door for frequent, honest discussions about your organization’s effectiveness and sustainability.

It’s never too late to start
The best time to establish the performance evaluation is before the executive director’s hire date. This way, the board can outline the standards of success and objectives in advance. However, it’s never too late to introduce an annual performance evaluation. Your board may even find that the evaluation results in a happier executive director who finally has a clear understanding of what success looks like to the board of directors.

Improve understanding to resolve conflict
Performance evaluations are also a useful tool to assess organizational failures or navigate conflicts. As HR professional, attorney, and Spokes Board of Director Jim Dorf says, “If the executive director is not achieving their goals, don’t just hope that things will improve. Once performance problems are observed, write everything down. Sit down with the executive director and set an objectively measurable performance improvement plan. Task a board member to assess the progress over agreed-upon intervals.”
Annual performance evaluations establish trust between executive directors and boards. Since executive directors manage day-to-day operations without oversight, board members can be left wondering what’s going on behind the scenes. Performance evaluations offer a safe space to inquire about daily operational strategies.

Keep it professional
It’s important to remember that the goal of an evaluation is to appraise professional performance, not the person. There is a great risk of bias, prejudice, and discriminatory actions when a board judges an executive director based on their personality or other subjective areas. According to 501 Commons, “An annual performance review can only hold the executive responsible for meeting targets, complying with policies, or achieving results that were agreed upon at least a year in advance. This way, the executive has time to organize resources and meet those targets and is given a chance to provide the board with information to indicate if the results and goals have been achieved.”

Make it a priority
To effectively conduct the evaluation, form a 2-3-person committee or task force – they will be responsible for determining the measurement criteria, establishing the formal process, and communicating with the executive director and the rest of the board. Download a checklist, like this one from Blue Avocado. Edit it to reflect your own measurement standards. Prepare to have a strategic discussion about organizational goals that have been set, met, or are pending.

Performance evaluations take time and effort to implement, but your executive director works hard. Your feedback plays a major part in their continued professional development. If you have questions or need supporting resources, feel free to call Spokes at 805-547-2244 or email [email protected].

The Best Way to Serve Your Community

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Are you looking to make a difference in your community? Are you passionate about making an impact in child welfare, social justice, environmental protection, and more? Are you new to board service or considering board service for the first time?

We’re Spokes, the nonprofit that supports nonprofits, and we’re here to help make your vision a reality. We think board service is one of the most meaningful ways to give back to your community. But you don’t have to just take our word for it. In this blog post, we’ll share some of the research on why board service is valuable for every entity involved, and we’ll finish by helping you with the next (or first) steps in the journey.

In San Luis Obispo County, more than 90% of local businesses are smaller owner-operated organizations – which bodes well for a local cultural of entrepreneurism, but presents real challenges for succession planning and talent development. It’s nearly impossible for small business owners to provide promising employees with professional development or cross training opportunities. But, there is another solution to develop leadership skills: nonprofit board service.

A recent study, Better World Leadership 2017, confirms that you can develop skills such as conflict resolution, management oversight, public relations, and crisis management while serving as board members for nonprofit organizations.

With more than 1,200 registered nonprofits, you’re bound to find your best match in San Luis Obispo County. However, successful nonprofit board service starts with training to understand the nuances of nonprofit management and governance. And, like all jobs, you should take time to carefully vet which nonprofit organization and mission is the best match for your personal values, interests, and expertise. Our course “Board Training Basics: Excellence in Nonprofit Leadership” on April 14 & 21 from 9 AM – 12 PM is designed to help you do just that. We encourage you to sign up for the course; we’re ready to help you start your board service career right! Reach out at [email protected], www.spokesfornonprofits.org, or 805-547-2244.

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