I chair a board, and one of my board members has committed an unacceptable act. Can I ethically hold a board meeting without that director to discuss it?

Yes, you can, and it is more ethical to have a formal session, with all the other directors if possible, than to hold the meeting in a parking lot. However, there are some restrictions and some cautions.

Normally, there are two ways to ask a director to leave a board meeting, and both methods involve declaring a conflict of interest. If you have a conflict of interest policy (and you definitely should have one), it likely says that a director who has declared a conflict of interest shall leave the meeting, or shall leave on request of the board.

If the person does not realize they are in a conflict of interest position, another director can make a motion to declare them to be in conflict, and the board can make a decision. If the board decides there is a conflict situation, the policy can then be applied. Lacking a policy, the board can set a precedent.

I very strongly recommend that the meeting, or the portion of the meeting dealing with this individual, be held in camera, that is, board members only, or board plus legal counsel. At most, you might include the executive director but no other staff members or outsiders. The minutes should be kept separate from the regular minutes. They would only reference that an in camera session was held and that the person in question was excused.

Can the meeting be secret?

I don’t have your bylaws, and I do not know under what statute you are incorporated, or even if you are incorporated. However, most bylaws and statutes require that all directors be notified of meetings, so you might run afoul of that legal requirement if you try to hold a secret meeting.

What can we discuss at such a meeting?

The situation is complex, and unlikely to be resolved fairly and with due process in a single meeting.

The first meeting should be about process, and not even touch on disciplinary action. How will this person be given a fair opportunity to present their side of the issue? What information do you need to collect in advance of such a hearing, and who will collect it? If the act in question was witnessed by more than one board member, you may not need additional information – but that scenario is rare. Even then, you should never assume you know the truth; there are always two sides and usually some mitigating circumstances. You cannot ethically ignore that possibility even if the situation looks absolutely clear to you in advance. Our society espouses “innocent until proven guilty.”

And while ignorance of the law may not be an excuse in the formal justice system, a board member who did not receive a copy of the board Code of Conduct or other such orientation might have thought the action in question was not only acceptable but normal. This is an easier argument for a new board member to make than an established one!

Assuming you do need additional information, which might involve additional witness statements or the like, you need to make sure this information is collected by someone with no stake in the outcome and a reputation for integrity and trustworthiness. Staff members should not be involved, and nor should any friend (or rival) of the person alleged to have committed an unacceptable act. You might look to a prior board chair, for example, or a trusted volunteer who is not perceived as being on one side or the other, or the chair of another community agency, or a conflict resolution consultant. The investigator must bring an open mind, since the person who complained might not be truthful, might not have the right information, and might be a trouble-maker. They may need access to a variety of documents, such as accounting records.

Only after information is collected can you present the individual with the evidence against them, and give them at least a couple of weeks to prepare to attend the second in camera session. They may wish to seek legal counsel and have a legal advisor present. If the situation is too grave to wait for due process, perhaps you should have called the police.

After the person has presented their side of the story, they can again be excused, through conflict of interest processes, from the board’s discussion of what action to take.

Are they entitled to know who made the allegations?

The person may wish to confront the individuals who have complained about them, and that needs to be looked at on a case by case basis. Was the complainant expecting protection and anonymity under an ethics reporting or whistle-blowing system? Did the complainant speak up only after a promise of confidentiality? Is there an issue of physical safety or sexual harassment that makes it inappropriate to ask the witness to be in the same room? Revealing who made the allegations without their consent is quite problematic, as is pressuring them for consent.

Depending on the type of complaint, it may be very, very easy for the person to figure out who complained, and even if it is not easy, they will try to guess. You may be better able to protect the people making allegations by identifying them (with consent) than having a violent or vengeful person going after a larger number of possible people. If facing that situation, you really need legal or police advice.

As well, consider whether the director needs to know who complained in order to make their case, or even to understand the allegations. Anyone in that situation will be upset by secrecy about who complained.

You should also consult any processes already established for your member discipline about expectations of confidentiality. Professional colleges, recognized sports governing bodies, and some voluntary organizations such as the Association of Fundraising Professionals have established processes for dealing with this question. It may or may not make sense to adapt that process.

What actions can a board take?

Generally, a board can only take back authority and positions that were within its authority to grant in the first place. In other words, it cannot remove someone from the board who was elected by the members; a special members meeting would need to be called. The bylaws may specify that a director can only be removed by a two-thirds vote of members present or represented by proxy, or similar wording.

However, if officers are elected by the board members, the board can remove a director from an officer position without consulting the members. The board can also remove a person from committees, task forces, list of media contacts and other volunteer roles. It can restrict access to the physical facilities (e.g., take back a key or change the pass-code), or seek a restraining order to keep the person away. It can remove online access not needed to carry out board duties.

I do not think a board can take reasonable action to prevent a director from carrying out their director role, such as attending meetings or receiving board packages, until the person resigns or is removed by members.

I am sorry you find yourself in this unpleasant position, but I am confident you and your board will find a resolution. You may wish to refer to the archives for my earlier column, on firing the president, for some related comments.

Since 1992, Jane Garthson has dedicated her consulting and training business to creating better futures for our communities and organizations through values-based leadership. She is a respected international voice on governance, strategic thinking and ethics. Jane can be reached at jane@garthsonleadership.ca.

To submit a dilemma for a future column, or to comment on a previous one, please contact editor@charityvillage.com. For paid professional advice about an urgent or complex situation, contact Jane directly.

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