Board of Director’s Training December 5, 2012

Board’s Ultimate Responsibility

How is this accomplished?

1.Organization’s Mission & Purpose 2.Hiring the Executive Director 3.Financial Oversight 4.Resources 5.Legal & Ethical Integrity/Accountability 6.Organizational Planning 7.Recruit Board Members/Assess Board Performance 8.Enhance Organization’s Public Standing 9.Determine, Monitor, & Strengthen the Organization’s Programs & Services 10.Support the Executive Director & Assess Performance

Ensure the organization functions within the framework of – and in furtherance of - its mission Resources are adequate and appropriately protected Sufficient oversight

Questions to ask? What kind of oversight am I expected to provide? Fiduciary Responsibility When and how can I be found personally liable? Inactive in overseeing their charge AND consequently may have failed to adhere to the standards of fiduciary responsibilities. How can I avoid, or at least minimize, personal liability? Abiding by the 3-D’s AND not acting as a solo but a collective body.

Duty of Care Requires the Board and individual board members to pay attention to the organization’s activities and operations Duty of Loyalty Requires board members to exercise their power in the interest of the organization and not their own interest or interest of another entity.

Duty of Obedience Requires board members to comply with applicable federal, state, and local laws, adhere to organization’s bylaws, and remain the guardians of the mission.

Questions to ask? 1.Do we have a copy of our state laws, and are we operating in accordance with the statutes? 2.Are the clauses in our articles of incorporation and bylaws consistent? 3.Have we amended our legal documents if we have changed our mission, scope of activities, or major structures in any way? 4.Who in our organization is responsible for keeping the legal documents? Is it easy to have access to them if we need them?

Most common reasons why Nonprofits get sued are: Employment claims (hiring, firing, benefits) Discrimination claims (employment, programs, volunteers) Torts/negligence (injuries, theft) Discrimination claims (employment, volunteers, programs) Release of records (availability of agency’s records) Defamation

If the board has NOT carried out its oversight duties adequately, it may get implicated in a lawsuit due to negligence of its duty of care obligation. The KEY to protection is a proactive, positive action. INDEMNIFICATION One party promised to protect another party from losses resulting from risks while carrying out specified duties.

Insurance Insurance coverage transfers the risk of liability to an independent third party – an insurance company. General Liability policy – cover negligent acts that result in property, personal, or bodily injury. Errors and Omissions policy – cover harm resulting from executive decision making. Bonding policy – protects from wrongful financial actions.

 Entity Coverage – ensures the coverage available extends to the nonprofit as well as to directors, officers, and others.  A broad definition of “insured” – traditional D&O policies contain narrow definition of “insured” – limiting coverage to current directors and officers. A policy that is tailored to meet the needs of a nonprofit will contain a “broad” definition of “insured”. The definition “may” ensure coverage for the nonprofit, as well as current and former directors, officers, staff, volunteers, etc.

 Broad definition of “claim” and “wrongful act” In addition to defining who is covered, a policy also defines what types of claims will be covered. Some D&O policies provide broad coverage for a wide range of claims….some policies restrict coverage to only “claims for money damages”…some policies provide coverage for defense of “administrative proceedings” (i.e. complaints filed with EEO or human rights commissions. A definition of “claims” should be spelled-out on the policy (i.e. civil, criminal, administrative, etc.)

 Coverage for a wide range of employment practices First, it may be available under a commercial general liability policy. Traditional commercial general liability policies specifically exclude coverage for employment-related events, but this is not universal. It may be purchased as a stand-alone employment practice liability policy OR it may be included under a D&O as an endorsement to a D&O Policy.

Risk Management Begins with… ACCOUNTABILITY IDENTIFYING RISKS MINIMIZING THE LIKELIHOOD OF HARM