I was reviewing books I have to review and stumbled across "good counsel: Meeting the Legal Needs of Nonrofits" by lesley rosenthal (Wiley, 2012). Ms. Rosenthal is corporate counsel for the Lincoln Center. Lincoln Center has enough going on that it requires the advice of a full-time attorney.
Overal, good counsel provides a legal lens to the variety of elements that comprises a nonprofit. Good counsel might actually serve as a useful introduction to board chairs who seriously want to understand the nature and being of nonprofits. After-all, nonprofits are a corporate tax-law construct so for a nonprofit board chair, adding from a legal lens could be helpful. More likely though, it will be nonprofit executives, particularly those who head-up nonprofits with at least five million dollar budgets who will find what is said in corporate counsel to provide added thought to the way they make decisions. And of course, attorneys serving nonprofits will appreciate the wisdom of this primer.
Meanwhile, I found one chapter of particular interest: Good Counsel about Corporate Governance. In this chapter Ms. Rosenthal answers provides insight about the functions of a nonprofit board, again, from a legal lens. For instance, there are many consultants who emphasize that the board has one employee: the executive director. Mr. Rosenthal is not prescriptive on this matter but simlply states and in this statement provides the rationale for the one-employee argument that
the board does not execte the day-to-day managment of the orgnaization; that role is reserved for its executives or managers. It would be contrary to its oversight and visionary role for non-executive board members to get into the business of running the organization. Good board members monitor, guide, and enable good management; they do not do it themselves.
Yes, the language of non-executive board members is a bit corporate and not generally applied to the nonprofit board but the picture is clear. A legal obligation is to voersee management and ensure the organization fulfills its mission. With this definition, the rest makes perfectly clear sense.
About board size: "there is no best number of board members (as long as the state minimum is met)." She further notes there is no best definition of a number of additional variables like leadership roles or number of membership slots to represnt various stakeholders or ideal committee structure. "these matters depend on the structure, size, needs and history of the organization". Again, the legal lens is not prescriptive nor subjective. It is just plain and unbiased recognizing that unless law says otherwise, there is no wrong unless what is is not working.
Ah, but meeting frequency is a topic which Ms. Rosenthal offers a position: meet regularly and if the organization is "of size", "at least once every other month although reasonable practices differ--OR, there should be a robust executive committees that is empowered, within legal limits to discharge the duties of the board" and then be sure to let the rest of the board know.
A helpful description is offered for what should be included in a board handbook. Additionally, advice is offered about the role for counsel noting in particular that outside and/or in-house counsel should have direct access to the board, its chair and key committee chairs.
A section on minutes emphasizes that minutes
memorialize board action AND "serve as evidence that the board or a committee properly and fully considered and decided organizational matters and, therby, properly and fully discharged its "fiduciary" duties.
Ms. Rosenthal notes that a governance or nominating committee is critical to the nominating and assessment process and that the process in itself is essential to a board's demonstrating its prudence in the seating of members. (Prudence is a standard regularly applied when determining if the actions of a board are reasonable or correct).
A large part of this section focuses on the audit followed by a briefer but equally deep section on executive compensation.
Like all chapters in this tome, focus questions (to demonstrate understanding and compensation) and a workplan are offered to inform corporate counsel and other readers about "what next".
Again, if you are corporate counsel, a nonprofit executive of a nonprofit "of size" or even a board chair, good counsel may prove a useful resource to you. You don't have to read it all in one setting or even sequentially which makes this not just a one-off reference but a true tool that will serve many a situation.