LEGAL RESPONSIBILITIES

What are the legal responsibilities of nonprofit boards?

Under well-established principles of nonprofit corporation law, a Board Member must meet certain standards of conduct and attention in carrying out his or her responsibilities to the organization. Several states have statutes adopting some variation of these duties, which would be used in court to determine whether a Board Member acted improperly. These standards are usually described as the duty of care, the duty of loyalty, the duty of obedience and fiduciary duties.

Duty of Care

The duty of care describes the level of competence that is expected of a Board Member and is commonly expressed as the duty of  "care that an ordinarily prudent person would exercise in a like position and under similar circumstances." This means that a Board Member owes the duty to exercise reasonable care when he or she makes a decision as a steward of the organization.

The duty of care is evident in the following activities:

  • The Board Member attends regularly scheduled meetings, meetings should be missed only for unavoidable emergencies
  • Board Members have received and read the bylaws and policies
  • Information is provided to the Board in a timely manner and in advance of meetings
  • Board Members arrive at meetings prepared, having read the minutes and advance material
  • Financial reports are furnished on a regular schedule and are reviewed by the Board
  • The Board makes informed decisions based on the information provided
  • The Board's decisions not only must be informed, but also must be reasoned and deliberate.
  • Minutes accurately reflect Board votes and decisions, including dissent
  • Board Members that do not attend meetings are bound by actions taken at those meetings
  • Boards may delegate duties to committees and other outside parties however the Board must monitor those to whom it has delegated authority as delegation does not relieve a Board of liability.

 

Duty of Loyalty

The duty of loyalty is a standard of faithfulness; a Board Member must give undivided allegiance when making decisions affecting the organization. Actions and decisions of the Board Member, while he or she is serving on the Board, must promote the organization's purpose and well-being rather than any private interest A Board Member can never use information obtained as a Member for personal gain, but must act in the best interests of the organization.

When a conflict arises between the interests of a Board Member and the well-being of IGFOA, the Board Member should immediately disclose the matter, and abstain from both the discussion as well as the decision-making. If the matter proceeds, the terms of any transaction with a Board Member must be at least as favorable to IGFOA as that which could be obtained from a party with no ties to IGFOA.

Board Members should observe confidentiality regarding the Board's deliberations and decision-making, and respect and adhere to all Board decisions, regardless of whether they voted in favor of the motion. Only designated spokespersons (usually the President) may speak publicly on behalf of IGFOA.

Duty of Obedience

The duty of obedience requires Board Members to be faithful to the organization's mission. They are not permitted to act in a way that is inconsistent with the central goals of the organization. Board Members must also comply with state and federal laws relating to the organization. A basis for this rule lies in the public's trust that the organization will manage donated funds to fulfill the organization's mission.

In order to maintain the public's trust as Members of a nonprofit organization, Board Members must be fully conversant and compliant with the Association's Mission, bylaws, and policies, and ensure that the policies, goals, and activities (including competent management of the organization's funds and other resources) are executed in accordance with the Mission.

Fiduciary Duty

The ultimate authority for managing the affairs of the organization is vested in the Board.  Because the law grants Board Members such authority, the law also imposes on Board Members an obligation to act in the best interests of the organization.  The law requires Board Members to act in good faith; with the care an ordinary prudent person in a like position would exercise under similar circumstances; and in a manner the Board Officer or Member reasonably believes to be in the best interests of the organization.

 

TABLE OF CONTENTS

Acknowledgement

Welcome

Mission, Vision and Strategic Priorities

History of IGFOA

Bylaws

Legal Responsibilities

Board Position Descriptions

Board Members Conduct

Antitrust Statement and Policy

Conflict of Interest Statement

Sarbanes Oxley Act Observance

Board Meeting Minutes

Board Policies

Ethics

Financial Matters

Parliamentary Procedure Guide

Nominations and Succession

Organizational Chart and Staff Responsibilities

Board meeting schedule and agenda

Current Executive Board Officers and Members

Chapters

Committees

Glossary of Association Definitions