Dealing With a Conflict of Interest

What should happen when a board member affiliated within your nonprofit clearly has a conflict of interest but does not recognize it or won’t acknowledge it? Is it acceptable to join a board if you come with an apparent conflict of interest?

These are both questions with which many boards struggle. Educating board members about the potential and perceived conflicts, having appropriate policies and procedures in place, and ensuring that these policies are respected are the beginning steps in eliminating bias from decision making.

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What is a Conflict of Interest?

A conflict of interest exists when a member of the organization has a personal interest that may influence them when making decisions. While the law focuses primarily on financial interests and provides some guidelines, nonprofit organizations contend with a variety of potential and perceived conflicts of interest. Examples might include:

• The chief executive of the organization is a spouse or close relative of the board member.
• The board candidate is also the chief executive of an organization with a similar mission and program structure.
• The board candidate is expected to participate in fundraising but is affiliated with an organization that is competing for the same funding.

Can You Be a Nonprofit Board Member with a Conflict of Interest?

While entirely avoiding conflicts of interest is an impossibility, boards can identify and follow a process for handling them effectively. An active board member often has numerous professional and personal affiliations, and, undoubtedly, some of them cross paths with their activities as a board member of your organization. Someone may have been chosen as a board member because of these particular associations or contacts. However, if a board candidate has a major obstacle in fulfilling the duty of loyalty, one of the main legal obligations of nonprofit board service, it may be necessary to re-evaluate the suitability to serve on the board while this obstacle exists. How an organization ensures open and honest deliberation affects all aspects of its operations and is critical to making good decisions, avoiding legal problems and public scandals, and remaining focused on the organization’s purpose.

A Solid Conflict of Interest Policy

As conflicts of interest are inevitable, the only way to handle them is to deal with them in an organized manner. Without a solid policy, it is difficult to address disputable situations. A comprehensive policy defines the purpose of the policy and includes a statement of commitment and understanding of this purpose by each board member. A policy incorporates a disclosure form that every board member signs annually after listing all financial, professional, and other relevant affiliations that might affect their decision-making during the coming year. This disclosure is kept on file and updated as necessary. The policy also describes the manner in which it addresses board members with a conflict. Each board member should be expected to bring up any unexpected conflicts of interest that may arise during deliberations.

Policy Implementation

The full board needs to discuss how to implement the policy. A few boards allow board members with a conflict of interest to participate in the discussion of the issue but not in voting. Most boards require that the board member in question leaves the room altogether before any deliberation begins to allow for a free and unencumbered exchange of opinions. Whatever approach is chosen, all board members need to respect it and be responsible for self-monitoring.

How to Solve a Conflict of Interest

What is the appropriate course of action when a board member does not realize that they have a conflict of interest or seems to forget that they need to leave the room before deliberation? The chair should take responsibility for handling this situation. The chair can be prepared by reviewing the disclosure documents while creating the agenda. During the meeting, the chair needs to remind the board member in question of their conflict of interest and ask them to recuse themselves. The reminder can be a gentle comment, and, if necessary, the discussion should be stopped until all disqualified members have left to show that the policy is being enforced.

If a board member does not agree that they have a conflict of interest in an issue on the agenda, the final solution—to avoid public embarrassment—is for the chair to call an executive session. Deliberation should wait until this incident has been resolved. The minutes should reflect who participated in the voting and the outcome.

Managing Conflicts of Interest

Help your board avoid a major conflict of interest through vigilance and adhering to the following:

• Keep board composition diverse and board size adequate to encourage robust discussion and to bring all points of view to the table. Don’t allow a major conflict of interest to dominate your board.
• Be proactive and deal with the issue before it becomes an issue. Discuss potential conflicts and how your board deals with them during recruitment of new board members.
• Talk about conflict of interest with the authority that chooses your board members if you have government or other publicly mandated positions on the board.
• Familiarize your board members with the duty of loyalty.

 

101 Resource | Last Updated July 7, 2022

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Resource: Managing Conflicts of Interest: The Board’s Guide to Unbiased Decision Making