“That decision is up to the board.”

“I’ll have to take this back to the board for a vote.”

“We’ll see what the board recommends.”

Sound familiar? A board of directors is clearly a powerful and necessary mechanism for any nonprofit. When the right mix of individuals sit on a board, decisions regarding the mission, vision and planning can be made with clarity and lively, but functional, debate.

But what happens when a board member’s performance isn’t up to snuff? Indeed, what happens when a member not only isn’t pulling his or her weight, but also is causing friction and dysfunction in the boardroom and jeopardizing the organization being served?

An ounce of prevention goes a long way

According to Todd Cain, vice president of crown and organizational governance at the Institute On Governance (IOG), taking preemptive measures to ensure proper board functioning is the best way to head off problems. Recruiting a competent, confident and assertive board chair is a key piece of the puzzle.

“How they facilitate discussion, in the kind of counselling the chair does with individual directors…if your [chair is] pretty explicit around the expectations and the values of the board, and the chair reinforces those…it goes a long way towards normalizing the behaviours and contributions that you want from your directors,” he said.

Another method often used to head off problems is an assessment process. Some boards use formal assessment processes, with an instituted assessment at the end of each meeting, he notes. “And one of the areas of questioning will be around contribution of individual board members. Whether there are any behaviours seen that were inconsistent with the organization’s values or culture. That’s an opportunity for the board to self-correct or the chair to intervene.”

Similarly, a yearly peer assessment can also help stave off poor performance at the board level, Cain said.

“There’s a chance for directors to give anonymous feedback to each other, which is also helpful,” he said.

Beverly Behan, principal at Board Advisor, concurs with Cain and offers similar advice, especially concerning the chair.

“One of the most important and yet often most unsavory jobs of the chair of the board is the management of board member performance,” she said. “You can have the tightest guidelines possible, but if the chair is unwilling to confront a board member who has a performance problem, it will remain unchecked. I have worked with many boards who have excellent chairs and no bylaws whatsoever that relate to board member performance who manage this issue very effectively and hold their board members very accountable.”

What do you expect?

And the theme of board member expectation is a crucial one. Behan expounds on this to make the point that clear board behavior and code needs to be enforced lest the organization suffer the consequences.

“Create a set of board member expectations which can range from time commitment, financial commitment — not uncommon in the case of nonprofit boards — expectations relating to preparation and keeping abreast of issues affecting the organization, conduct in board meetings, avoidance of conflicts of interest, etc.,” she noted. “While these expectations are more of a guideline than a bylaw, they can be very useful for a chair or governance committee to reference in a performance discussion with a board member.”

Behan cautions however, that this set of expectations will only have value if all board members are engaged in the creation of these expectations, since that exercise serves to “get buy-in and reinforcement of what is appropriate conduct for a board member. Crafting these in an ivory tower seldom has much impact.”

Which brings the conversation to bylaws and provisions regarding removal of a board member.

Both Cain and Behan acknowledge that terminating a board member is tricky and not something one should be looking to do without first attempting to correct the member’s behavior through various mechanisms. But if it must be done, there are some tried-and-true ways to pull the trigger.

Get your bylaws in order

Behan points out that typically, nonprofit and for-profit organizations have certain policies that require board members to tender their resignations. The most common of these are age and term limits that essentially terminate a board member at a specified age, such as 75, or after a specified term of service, such as 15 years, she said.

“Some boards also require a board member to tender his/her resignation to the governance committee on any change of professional employment or a change in residency, if a tie to the local community is important,” Behan noted. “In such situations, the committee has discretion to accept the resignation or not. There are frequently other policies regarding board member termination or resignation relating to conflicts of interest between the board member and the organization.”

Cain underlines other provisions that boards can draft that can clear up any confusion as to how best to remove a sitting board member.

“The most common one is removal for non-contribution: just not showing up. That’s not a bad provision for boards to have on their books and in their bylaws,” he said. “If someone misses a certain number of meetings, they are removed from the board.” It’s logical: if you don’t show up you’re not actually contributing to the organization.

The other standard way to remove a sitting board member requires setting a “very high decision threshold,” according to Cain. “It’s not just getting a minimum majority vote out of the quorum, it would require an absolute majority. That’s because this is not a light decision, so the threshold should not be the usual standard of decision-making” from the board.

He said this decision-making level should also be something enshrined in an organization’s bylaws and that it be approved as a termination process by the membership as a whole.

Lastly, Cain said, like most things in a governance model, bylaws regarding removal of a board member should be stress-tested.

“When you’re designing a mechanism that removes a member of the board, you need to think about the extreme situations. Could these same provisions be used and abused if there were some kind of big power struggle going on at the board level?” he asked rhetorically.

An organization never wants to provide a way for its governance to be misused.

Cain cites an old adage, “fix your roof on a sunny day,” to make the point that if you are going to institute a new bylaw or provision about how to remove a board member, it’s best to implement that change in governance when there is no major problem happening at the board level. For instance, if there is an underperforming or disruptive member and you try to put through a new regulation to remove a board member, that person can justifiably feel they are being targeted.

“But when there’s no specific issue and it’s just a matter of having a good governance provision in case you need it, that’s the time to do it,” he said.

For Behan, removal of a member through bylaw enforcement is something that is sometimes necessary, but she advises not to get stuck on drafting elaborate provisions.

“There are so many variations of board member under-performance that it is almost impossible to provide for all of them in bylaws. Non-attendance at board meetings is an obvious one; but what about someone who is clearly unprepared for the meetings? Someone who is overly hostile or attacking in his or her questions or comments? Someone who wastes the board’s time meeting after meeting with a pet issue?” she asks. “These are the kinds of things that the chair has to sit down and address with the offending board member, give him/her some feedback about the issue and a chance to make some changes. If the changes don’t occur, then there should be a discussion about whether or not to re-nominate the board member held with the governance committee.”

Another thorny issue, according to Behan, is the problem of dealing with major contributors on the board.

Board member performance issues can be particularly complicated in nonprofits if underperforming members happen to be some of the larger donors or contributors to the organization. Many chairs or governance committees of nonprofits are particularly hesitant to address board member performance in these types of situations and allow under-performing board members to continue unchecked until they reach some kind of mandatory retirement age or term limit, she said.

Which is why she echoes Cain’s suggestion about regularly scheduled peer assessments. “One of the best bylaws any board can implement if they are serious about performance of their board members involves a policy or bylaw to conduct an individual board member peer evaluation every three years,” Behan said. “This exercise elicits feedback about the individual performance of every board member that can be used in board member performance management by the chair or committee.”

Moreover, she said these peer reviews are highly effective when conducted by an experienced third party using an interview format. They become less effective when a survey is used and/or they are conducted internally by the board chair because the “internal dynamics and politics of the board frequently impacts the candor of the feedback.”

Don’t mistake board strength for weakness

As a final word, Cain urges all board chairs and members to try and keep a big-picture attitude when it comes to understanding how their dynamic works. Don’t “mistake diversity for dysfunction when it comes to behavior,” he said. If someone comes at issues from a different worldview, a different perspective or analytical process that’s not the same thing as poor performance. Those members may simply just want to delve further into an issue and is not necessarily a sign that anything is wrong.

In fact, Cain said, “It could be a sign that you’ve got a good strong board that can stand up to a robust discussion and deal with issues.” He cautioned however, that if every little issue comes up for debate in this manner, which could indicate a less functional member.

That said Cain believes the next frontier for all boards is diversity of thought, and not just demographic diversity.

One last note, for those nonprofits not in the know, in Ontario the Volunteer Lawyers Service (VLS) can help nonprofits draft bylaws. It’s a pro bono service offering support to “eligible charitable and nonprofit organizations in Ontario that otherwise could not afford the services of a lawyer,” according to their website.

Sector experts suggest organizations should always send their final drafts for legal review before submitting to their boards of directors.

Andy Levy-Ajzenkopf is president of WordLaunch professional writing services in Toronto. He can be reached at andy@wordlaunch.com.

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Photos (from top) via iStock.com. All photos used with permission.