Info You Can Use: Board Members Can Be Personally Responsible For Gross Inaction

Responsible governance by non profit boards is becoming an increasingly important and discussed topic. Non-Profit Law blog recently pointed out a court decision that emphasizes the need for boards to take their oversight duties seriously.

The following should especially be of interest: (my emphasis)

…that governing boards of not-for-profits who have actual knowledge of mismanagement by the officers of the corporation and choose to ignore it and/or not take appropriate action, can be held financially liable for breach of their fiduciary duty of care. The decision carries special weight because it turns on its head the long-held assumption that nonprofit directors are insulated from financial exposure, barring personal involvement in corruption, venality or fraud. This should be a wake-up call to nonprofits about the very real perils of inattention or inaction.

This case is related to the board overseeing a not-for-profit retirement home where the board’s inattention was particularly egregious. Board meetings were poorly attended, there was no treasurer, no finance committee as required by bylaws and the board was aware that the chief financial officer wasn’t maintaining records properly.

It is the fact the board was aware of the mismanagement at the retirement home, (I haven’t listed even 1/4 of it), and allowed much of it to continue, exposed them to liability.

Many states have laws similar to that of Pennsylvania where this case occurred, which says a board member is:

“…entitled to rely in good faith on information, opinions, reports or statements, including financial statements and other financial data” prepared by employees or experts. However, “[a] Director shall not be considered to be acting in good faith if he[/she] has knowledge concerning the matter in question that would cause his[/her] reliance to be unwarranted.”

If a board member has based her decisions information and advice she has every reason to believe is accurate and dependable, then she is more greatly insulated from personal liability should mismanagement and impropriety be surreptitiously running rampant.

Most people need not fear joining a non-profit board of directors, even for an organization that appears to be struggling financially, if they are diligently monitoring the situation and taking steps to rectify it. (And making sure such actions are being properly recorded in the meeting minutes.)

As I have noted in the past, if you do find yourself on the board of a failing non-profit, even though it may occupy an inordinate amount of time and energy, it much better to stick it out until the bitter end than to potentially expose yourself to greater liability by quitting.

About Joe Patti

I have been writing Butts in the Seats (BitS) on topics of arts and cultural administration since 2004 (yikes!). Given the ever evolving concerns facing the sector, I have yet to exhaust the available subject matter. In addition to BitS, I am a founding contributor to the ArtsHacker (artshacker.com) website where I focus on topics related to boards, law, governance, policy and practice.

I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (http://www.creatingconnection.org/about/)

My most recent role was as Executive Director of the Grand Opera House in Macon, GA.

Among the things I am most proud are having produced an opera in the Hawaiian language and a dance drama about Hawaii's snow goddess Poli'ahu while working as a Theater Manager in Hawaii. Though there are many more highlights than there is space here to list.

CONNECT WITH JOE


Leave a Comment