Blog.
Most Recent Posts
![Five Ways Nonprofit Board Actions Can Be Challenged Under Law [SUBSCRIBERS-ONLY]](https://images.squarespace-cdn.com/content/v1/5e6ccadfb4659c1d51df14d5/1730307595287-W3L74FMFRZEHZ01AZV15/pexels-zachary-caraway-646894910-17630959.jpg)
Five Ways Nonprofit Board Actions Can Be Challenged Under Law [SUBSCRIBERS-ONLY]
It is well-known that Board members are subject to fiduciary duties in their oversight and decision-making role, among other rules that apply to nonprofit organizations. However, the practical reality of how these requirements are scrutinized, applied, and enforced is less understood. This article provides a brief overview of some common ways that Board decisions and actions could be challenged in court.
Q&A #167 – Does the Board of Directors have a responsibility to review staff policies?
The chief executive of a nonprofit organization usually has the primary responsibility for managing staff and human resources issues, including the development and implementation of most employee handbook policies. With some exceptions, nonprofit Boards are not expected to review and approve staff policies, but the Board’s oversight role includes a duty to take reasonable steps to confirm these policies are in place and updated periodically.
![VIDEO Q&A for Subscribers: June 2024 [SUBSCRIBERS-ONLY]](https://images.squarespace-cdn.com/content/v1/5e6ccadfb4659c1d51df14d5/682f6ab6-6720-4d11-963f-45e952c5552b/SE4N+Video+Q%26A+2024-06.png)
VIDEO Q&A for Subscribers: June 2024 [SUBSCRIBERS-ONLY]
Ben and Mike answer questions from subscribers about the responsibility of a Board of Directors to fill vacancies and how vacancy appointments count towards term limits, the Board's responsibilities regarding the use of large unexpected gifts and bequests, whether Board service can be reported as an in-kind contribution, and the distinction between policies and procedures that apply to Board and the staff.
![Seven Key Steps for Managing Nonprofit Corporate Governance Disputes [SUBSCRIBERS-ONLY]](https://images.squarespace-cdn.com/content/v1/5e6ccadfb4659c1d51df14d5/1684850686845-BLMLI9MTHUVKFV4FHBS9/pexels-alex-neri-6721364.jpg)
Seven Key Steps for Managing Nonprofit Corporate Governance Disputes [SUBSCRIBERS-ONLY]
For most nonprofit organizations, it is a rare occurrence for internal corporate governance disputes to escalate to the point of litigation. However, court cases are sometimes unavoidable. A notable D.C. Court of Appeals decision addressed several important issues related to corporate governance challenges and illustrated some key steps nonprofits can take to better manage these disputes.
Q&A #159 – Should a nonprofit hire an investment advisor?
While nonprofit organizations are not legally required to use a professional investment advisor to help guide the organization with their investment management, most nonprofits correctly choose to work with a professional investment advisor. Delegating management of the investment portfolio to Board members is not a wise choice because this unnecessarily exposes the organization and its Board members to fiduciary risks related to potential compliance failures and performance shortfalls.
Q&A #133 – How does delegation to a committee impact the fiduciary duties of Board members?
While delegating a matter to a committee does not totally absolve the other Board members from their fiduciary duties, there is usually no explicit requirement that the Board retain final approval authority over day-to-day transactions. Further, state nonprofit corporation law typically provides favorable treatment to Board members who properly and reasonably delegate a matter to a committee of other qualified and experienced Board members.
Q&A #114 – What happens if a nonprofit fails to hold regular Board meetings?
Failure to hold regular Board meetings as required in the organization’s Bylaws is a problem but usually does not trigger immediate consequences by itself. However, this is often a sign of deeper neglect or compliance failures inside the organization and will not reflect well on the Board members in the event of an internal dispute, lawsuit, government investigation, or financial statement audit.
Q&A #109 – Can Board members insist that meeting minutes reflect their dissent?
The right of Board members to insist that their dissenting positions be reflected in the Board meeting minutes is ultimately determined by the organization’s Bylaws and the applicable state nonprofit corporation statute. Your state’s nonprofit corporation statute may provide Board members with a right to have their dissenting vote reflected in the meeting minutes, but there is generally no requirement that meeting minutes articulate the reasons for the dissent.
Q&A #62 – Are Board members allowed to pursue funding opportunities for other organizations?
This question raises difficult issues under the “corporate opportunity doctrine,” which is rooted in the fiduciary duty of loyalty. Under the corporate opportunity doctrine, a corporation’s Board members must avoid diverting to themselves opportunities which in fairness ought to belong to the corporation (such as leasing or purchase of property, funding opportunities, mission-based activities, or other business opportunities that could be advantageous the organization).
Q&A #44 – Should a Board member personally own a nonprofit organization’s trademarks and website URL?
I have not seen guidance from the IRS directly addressing this situation, but I think it is problematic for a founder or Board member to personally own a nonprofit organization’s trademarks, website URL, social media accounts, and other types of intangible assets. While one could make an argument that there is no harm if the nonprofit is allowed to use these assets for free (or for a fee that is no more than fair market value), there are problems with this situation that become increasingly apparent over time.
Q&A #43 – Should a nonprofit conflict of interest policy address non-financial conflicts?
You are correct that perceived or actual conflicts of interest can arise in a variety of different contexts and not all of them involve financial transactions. However, it is generally best to keep your conflict of interest policy focused on financial conflicts, while addressing concerns about non-financial conflicts in other ways.
Q&A #35 – Is proxy voting allowed for nonprofit Board members?
You should check your applicable state nonprofit corporation statute, but proxy voting is generally not permitted for Board members. In many states, it is challenging to find a clear answer to this question in the statute, but proxy voting by Board members of a nonprofit organization is widely considered to be a poor governance practice that should be avoided.
The Personal Liability Risks of Nonprofit Board Service
Serving on the Board of Directors of a nonprofit organization can be a rewarding experience that offers the chance to give back to a meaningful cause while providing a learning experience and opportunities to deepen one’s connections and stature within the community. However, this positive experience comes with a level of personal liability exposure under certain circumstances.
Q&A #17 – Is it a conflict of interest to make a grant to another nonprofit founded by one of our Board members?
This is not the type of conflict of interest that is the main concern of the rules applicable to 501(c)(3) organizations, but there are a few good reasons to approach this situation carefully regardless.