Developing a Code of Conduct for a Board: A Case Study

Developing a Code of Conduct for a Board:  A Case Study



Michael Mouritsen


Presented to the Parliamentary Society of Toronto

April 3, 2007




As some of you may know, I work for a union and a large part of my job includes supporting the governance structure of the organization:  supervising elections, organizing the annual meeting, acting as a staff advisor to the board and committees and drafting policies, by-laws and constitutional amendments.  That’s one of the reasons I became interested in parliamentary procedure and, in the course of working with former AIP President Jim Lochrie when he was retained as our organization’s Parliamentarian, I decided to join the AIP and the Toronto Society.  In planning a possible presentation, I thought it would be interesting to share with this group my experience in developing a code of conduct for our Board of Directors and, hopefully, to offer some observations that might be helpful in a more generic sense to any board that consists essentially of volunteers.


I know that there have been presentations in the past to this group on related subjects, including one by Larry O’Neill on “Parliamentary Procedure and Unions”; another by Richard Slee on “Discipline”; one by Ellen Campbell on the “Role of the Board of Directors”; and a presentation by Henry Miller on “Responsibility in an Organization”.  I’m hoping I can bring something new to the subjects of both unions and boards (and their role and responsibilities) by focusing on the need for a code of conduct and the benefits that come from adopting one. 




Since this is a case study, let me begin by describing the organization.  The union represents approximately 10,000 professional and supervisory public servants who work in all regions of the Province of Ontario.  The organization is relatively young; it celebrates its 15th anniversary this summer, and in that short period of time, its membership has doubled and, not surprisingly, we have gone through a significant number of growing pains, particularly in the area of governance. 


The other piece of information is about the Board of Directors itself.  We have a nine-member Board, consisting of four executive officers and five directors.  All nine are elected by an annual convention for two-year terms.  The officers are independently elected.  The terms are staggered, with five members up for election one year and four the next.  No one is elected to represent a particular region or a constituency; in other words, all nine members have a fiduciary duty to represent the entire organization.  The board is accountable to the annual convention but, between meetings of the convention, reports to a smaller intermediary body (a Council) that meets six times a year.  The Board itself meets at least once a month, often for two days each month.


The president and vice-president are on full-time union leave and work in the union office, along with 25 full-time office staff. 


Why did we believe that we needed a Code of Conduct for the Board?


As with the governing boards of many voluntary organizations, we draw from a mixed bag of experience and skills.  Some of our members have had absolutely no experience participating on boards or committees.  Others, as part of their professional careers, support and work with boards in the community (such as social service agencies, museums, college and university boards, school boards and municipal councils) and have a bit more experience, but even some of those members have found it difficult to make the transition from supporting or assisting the work of a board to actually being a member of a board and being responsible for making decisions.   Finally, we have members who actually sit on boards, either as part of their jobs, where they are expected to represent their employer, or as volunteers in the community.  


Again, this is not uncommon for many boards or committees.  Inevitably, in any democratic organization, you end up with members with varying degrees of experience and skills that they bring to the table.  This is both a strength and a weakness.  What we found, not surprisingly, is that just because someone agrees to be nominated for the board doesn’t mean they necessarily know how to behave or conduct themselves once elected.  We concluded that, as an organization, we had a responsibility to make sure our board members had access to the right tools, such as a formal orientation and training program, a policy manual and other resources that can create a level playing field for all board members, at least in terms of information, regardless of their individual experience or length of service.


So that was the first reason for developing a code of conduct – to prepare an overall orientation and training program for the board. 


More specifically, however, there had been, over the preceding number of years, a few incidents involving a small number of board members who would raise each year concerns among other board members with regard to their behaviour.  These incidents fell into five major areas and they kept recurring, sometimes with the same board members:


1.  Issues around confidentiality and what board members could say to non-board members about discussions at board meetings (which have traditionally been held in closed or executive sessions). 


2.  Issues around conflict of interest and the fiduciary responsibility of board members to the organization as a whole.  Some board members had difficulty rising above the narrow interests of their own professional group or ministry or region to think of what was best for the union.


3.  Issues around what became known as board solidarity.  Essentially this involved a minority on the board (often one or two members) who would refuse to accept decisions made by the majority of the board and seek to have the decisions overturned or modified by either the council (consisting of a subset of the members of the annual convention and to which the board was nominally accountable between meetings of the convention) or at the annual convention itself. 


4.  Issues involving basic personal conduct, by which I mean the treatment of other members during and between meetings, including rudeness, sarcasm, interruptions, misrepresentation of positions, questioning personal motives, etc.


5.  Issues related to the relations between board members and the staff of the organization, in which individual board members would either try to issue instructions to staff or try to get information from them to use in board meetings.  Under our constitution, the elected president is the chief executive officer, to whom the staff are accountable through three staff managers.


So, finally, after at least five years in which these specific instances would occur and the board struggled to deal with them on an occasional basis, the board asked its staff advisor to prepare some options for their consideration.  That was in 2003. 


How we went about drafting a Code of Conduct


Our approach involved the following steps:


·         We reviewed the board minutes over the previous five or six years to do an inventory of the number of times issues around board conduct had been raised.  That, in turn, led to a classification of the issues into the five major groups I’ve just identified.

·         We then looked to our own constitution and existing policies.  There wasn’t much there other than a general exhortation in the constitution that “all members and officers should strive to act with integrity and respect for the human rights of others and in accordance with democratic principles and due process”.

·         Then we looked to our parliamentary authority, which is specified as the most recent edition of Robert’s Rules of Order.  We consulted with our Parliamentarian, Jim Lochrie, who was extremely helpful in identifying specific sections in Robert and other authorities that could guide us in drafting a Code of Conduct.  (I will address these shortly.)  Lochrie also encouraged us to draft a board manual, suggesting that many other boards with whom he works have found this a useful way to make sure everyone has the relevant policies in a single source and that the manual is often where specific rules about conduct can be placed. A manual also discourages members from trying to re-invent the wheel when it is clear that an issue has been addressed before.

·         Finally, we also looked at statements or codes from a selection of other organizations to see what kind of behaviour was addressed by others (including some private sector boards, municipal councils, university boards, another union and some voluntary organizations).  Because our members are public servants, we were also familiar with various policies that apply to them in their roles as public servants, including rules governing conflict of interest, confidentiality and acceptance of hospitality, for example.  Interestingly, almost all of the behaviour that was covered in the other codes fell into the five categories that we had identified as problematic from our own experience.   We didn’t find anything significantly new elsewhere that we hadn’t already identified as a problem.

·         Staff brought a short options paper back to the Board indicating the areas that we planned to address, based on the issues identified, and the Board authorized us to bring back a draft Code for consideration.


Robert and Other Authorities


The major reference from Robert (RONR, 10th edition) is from the Introduction, in the quotation from his 1923 edition of Parliamentary Law: 


"The great lesson for democracies to learn is for the majority to give to the minority a full, free opportunity to present their side of the case, and then for the minority, having failed to win a majority to their views, gracefully to submit and to recognize the action as that of the entire organization, and cheerfully to assist in carrying it out, until they can secure its


Robert’s use of the words “gracefully” and “cheerfully” give some indication of his view of how members should treat each other in meetings.  These are addressed in detail on pages 379 to 382 of Robert, particularly his view that members should:


·         Confine their remarks to the merits of the pending question;

·         Refrain from attacking a member’s motives;

·         Address all remarks through the Chair;

·         Refrain from speaking adversely on a prior action not pending (in other words, don’t drag up the past);

·         Refrain from disturbing the assembly through interruptions, whispered asides, etc.


There is nothing to stop a minority from trying to change the mind of the majority, but there are ways to do it legitimately, including, for example, moving to reconsider a vote, or to rescind or amend something previously adopted. 


Another useful resource, although not a parliamentary authority as such, is John Carver, who has written extensively on the subject of governance and the role of boards.  We found a helpful reference from him on the issue of “board solidarity”:

"The board speaks authoritatively when it passes an official motion at a properly constituted meeting. Statements by [individual] board members have no authority. In other words, the board speaks with one voice or not at all. The “one voice” principle makes it possible to know what the board has said, and what it has not said. This is important when the board gives instructions to one or more subordinates. “One voice” does not require unanimous votes. But it does require all board members, even those who lost the vote, to respect the decision that was made. Board decisions can be changed by the board, but never by board members." [John Carver, Boards That Make A Difference, 1990; emphasis added].

Board Adopts the Code


In October of 2003, the Board adopted a formal Code of Conduct, a copy of which is attached.  We had asked Jim Lochrie, our Parliamentarian, to review it in draft before the final version was submitted to the Board and he suggested a few changes.  The code was adopted without significant amendment by the Board. 


I won’t go through it in detail, but as you can see, it covers the major issues that we had identified as problems in the past.  We expanded the issue of conflict of interest into a number of sub-categories, including partisan political activity, acceptance of gifts and avoidance of preferential treatment, and addressed them under separate headings.  We also referred to both our Constitution and Robert’s Rules of Order as additional sources, since we did not want to make the Code too detailed (e.g., references to discipline, removal from office and protection of personal information are covered elsewhere in other documents).


The only opposition to the code, interestingly, came from a delegate to our annual convention who tried to move a motion to have the convention discuss and overturn the board’s code of conduct on the grounds that the code would stifle dissent (in promoting the notion of speaking with “one voice”).  The chair ruled the attempt to amend or overturn the code out of order, inasmuch as the board is given authority by our Constitution to develop its own rules of procedure and conduct and that, unless the convention took that authority away (through a constitutional amendment), the board’s authority to act was legitimate.




Almost four years later, what have we found?  A few observations:


·         Board meetings are more civil than in the past and members tend to treat one another more politely.  This cannot be attributed entirely to the code of conduct, but most members believe it has been a contributing factor.

·         There have been many fewer cases of members disputing Board decisions at other bodies, such as the Council, committees or the annual convention.

·         There is a better sense on the part of Board members that they have a responsibility to act in the best interests of the entire organization.

·         Following adoption of the code, we added an item to each Board meeting agenda under which members are prompted to disclose any conflicts of interest.  There haven’t been a lot of such disclosures, but it has been a useful tool to sensitize members to the issue of conflicts and the need to disclose them.

·         The code is circulated to all members at the beginning of the term of office of the Board in January of each year and is also, of course, included in the Board’s policy and orientation manual. 


There are a few issues that our Code does not address that we found in other Codes and that might well be useful, depending on the organization:


·         Some codes speak to the duty to attend and participate in meetings, including in some cases (common to municipal councils or boards of education) a duty to vote on every question;

·         Others explicitly refer to the duty to read material and some require board members to engage in continuing education as a condition of re-appointment;

·         Some codes contain explicit penalties and disciplinary measures for violating the code;

·         Others require members to sign an undertaking each year that they have read and understand the code and agree to comply with it;

·         Some boards establish an ethics committee to review alleged violations of the code.




I’ll leave you with two observations from other codes that I think put the adoption of a Board code of conduct in perspective (emphasis has been added in each case). 


From the Code of Business Conduct adopted by the American Express Company:


“Since no code or policy can anticipate every situation that might arise, this code is intended to provide guidance for handling unforeseen situations which may arise.”


And the Code of Conduct from the Toronto Stock Exchange Board, which begins with the observation that


“No code can replace the thoughtful behaviour of an ethical director.  However, the purpose of the board code is to foster a climate of honesty, truthfulness and integrity.”


We found the adoption of a Code of Conduct for our Board of Directors extremely helpful, for the reasons identified, and would recommend this approach to any other organization, including unions, that operate with volunteer boards.  



Attached:  Board Code of Conduct

Appendix:  Code of Conduct for the Board of Directors




The Board of Directors adopts the following code to govern the conduct of its members in the context of the Preamble of the Constitution, which states:


“In adopting this Constitution, the members adopt the principles of free collective bargaining and the fair and equitable representation of employees by the Association in the workplace.  In carrying out these principles on a day-to-day basis, all members and officers should strive to act with integrity and respect for the human rights of others, and in accordance with democratic principles and due process.”


The Board is governed in all procedural matters by Robert’s Rules of Order, as stipulated in Article 68 of the Constitution.


1.                  Fiduciary Responsibility


Members of the Board have a fiduciary responsibility to the Association and, as such, are expected to act honestly, in good faith, with due care and diligence and in the best interests of the Association. 


2.                  Conflict of Interest


Members of the Board have a duty to fully disclose to the Board any real or potential conflicts that might arise between their fiduciary responsibilities as Board members and their personal or private interests.  “Personal or private interests” are deemed to include the interests of any individual or organization with which the member has an immediate family, intimate or commercial relationship.


Disclosure of a real or potential conflict of interest must be made as soon as the member becomes aware of a conflict and the disclosure shall be entered in the Board’s minutes.  Members have a duty to avoid participating in decision-making on a matter in which they have declared a conflict of interest. 


Members of the Board have a duty to avoid using their positions as Board members (including the use of confidential information obtained in their roles as Board members and including the use of the Association’s financial, staff or office resources) to advance or benefit their personal or private interests.  If a member of the Board is in any doubt about whether he or she is or may be in a real or potential conflict of interest, the Board member has a duty to make full and timely disclosure of the real or potential conflict to the Board and to comply with any decision of the Board on the matter.


3.         Partisan Political Activity


A member of the Board engaging in legitimate partisan political activity in his or her role as a private citizen has a duty to ensure that such activity is not misrepresented or misconstrued as activity undertaken in his or her role as a Board member on behalf of the Board, the Association or its members.


4.        Acceptance of Gifts, Hospitality or Other Benefits


Members of the Board have a duty to avoid encouraging the offer of, and to refuse, gifts, hospitality or other benefits, the acceptance of which (by the member or by any individual or organization with which the member has an immediate family, intimate or commercial relationship) could influence their judgement or the performance of their duties as Board members. Board members may accept incidental gifts, hospitality or other benefits associated with their official duties if such gifts, hospitality or other benefits (a) are a common and appropriate expression of courtesy and fall within the normal standards of hospitality for public servants; (b) do not cause suspicion about the objectivity and impartiality of the Board member; and (c) do not compromise the integrity of the Board, the Association and its decision-making processes. 


If a member of the Board is in any doubt about the legitimacy of accepting a gift, hospitality or other benefit, that member has a duty to make full and timely disclosure of the offer or acceptance of the offer to the Board and to comply with any decision of the Board on the matter.


5.         Avoidance of Preferential Treatment


Board members have a duty to avoid being obligated, or seeming to be obligated, to any individual or organization that might benefit from special consideration by the Board or its members.  Board members are reminded of the duty of fair representation owed to all employees in bargaining units represented by the Association.


6.         Confidentiality


Decisions of the Board are codified in the form of either resolutions or action items that are recorded in the Minutes of a meeting.  Once the Minutes have been approved by the Board, they are deemed to be in the public domain and are provided for information to members of Provincial Council at the next scheduled meeting following Board approval. 


Notwithstanding the foregoing typical process, from time to time the Board may by majority vote move into an in camera session or may declare a matter to be confidential, with or without a specified time limit on the confidentiality and indicating whether individuals other than Board members are entitled to have access to the confidential information.  Matters subject to confidential discussion usually include: strategic discussions related to collective bargaining, business planning disclosures made to the Association by the Employer, personal details related to member disputes, personal details related to the Association’s staff, advice from legal counsel including matters related to litigation or potential litigation and other matters in which premature public disclosure could be detrimental to the interests of the Association or its members. 


In such situations where the Board has declared a matter to be confidential, all members of the Board have a duty to respect and comply with the confidentiality provisions specified.


7.         Board Solidarity


            The Board of Directors, as well as the other governing bodies in the Association, operate under two fundamental democratic principles that are inseparable: first, that in any discussion, the minority must have a fair and full opportunity to present its side of the argument; and second, that the ultimate decision of the majority becomes the decision of the Board.  Once the majority decision has been determined by vote, that vote becomes the decision of the Board and it is the duty of all members to accept and abide by the decision.  The Board is expected to speak with “one voice” in those matters on which it has decision-making authority.  Unanimity or consensus, while perhaps desirable, is not required for the Board to speak with “one voice”. 


In cases where the Board is making a recommendation to either the Provincial Council or the Delegates’ Conference, the recommendation of the majority is the Board recommendation.  Board members who were in the minority on a particular recommendation are permitted, if they wish, to indicate their dissent at the subsequent Council meeting or Conference (by speaking or voting against the recommendation), although they have a duty to provide the Board with prior notice of their intention to do so.


8.         Treatment of Other Members


Members of the Board have a duty to treat other Board members with respect, both in Board meetings and beyond (e.g., in the meetings of other governing bodies, Chapter meetings or committees).  Specifically, members have a duty to avoid:


1.                   Disrupting meetings by making continual interruptions or whispered asides;

2.                   Making offensive or abusive remarks directed at other members;

3.                   Using unparliamentary language, inflammatory words or a harsh tone;  

4.                   Impugning the motives of other members;

5.                   Ignoring the legitimate direction of the presiding officer.


Members who object to the behaviour of another member must do so immediately (if the objectionable behaviour occurs during a meeting) or at the next immediate meeting (if the behaviour occurs between meetings).  The Constitution and By-laws and Robert’s Rules of Order will guide the resolution of any such objections.   


9.         Relationship Between Board Members and Association Staff


Members of the Board have a duty to respect the approved reporting lines for the Association’s staff.  All staff report to their supervisors (the three management employees), who in turn report to the Executive Committee through the President.  Staff assignments to support the work of the Board and Association committees are determined by the President and the staff workload implications of Board and committee requests must be discussed with the President. 


There often needs to be interaction and informal contacts between individual Board members and individual staff in order for the Association to conduct its business, but in all such interactions, Board members have a duty to be sensitive to the need not to make inappropriate requests of staff or to engage them in inappropriate discussions.  The Board expects that both Board members and staff will treat each other with mutual respect.

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