Submission Date:
Question:
[My library's] community is calling for a member of the staff to have a seat on the board as a voting member. However, I am searching for something in the trustee handbook or DLD regulations that explicitly states this. I am not aware of any library that has ever had a staff member sit on the board as a voting trustee. I'm not inclined to agree because there are multiple knock-on effects they have not contemplated (e.g. changes to by-laws, number of seats on the board, not to mention the ethicality of a staff member sitting on a body that directs hiring/wages/appointments etc.). Of course, local by-laws are also in effect, but those do not state staff cannot be on the board, it's always just been common knowledge.
Any help/advice you could provide about the ethical question, as well as perhaps the legal one, would be very helpful.
Many thanks.
Answer:
There are many reasons a not-for-profit organization, such as a library, may contemplate employee membership--or structured involvement--on the governing board.
Common reasons are:
- To ensure timely employee involvement in governance matters;
- To promote transparency and workforce trust in board decisions;
- To balance or enhance other dynamics that govern the organization.
In this case, the member library's community is calling for a worker-trustee, which means the motivation could be a combination of all three...or that the community just likes the idea.
So, with such laudable objectives, what could be the problem?
The member has flagged the concern.
While the motivations for employee trusteeship can be worthy, anyone who has read a not-for-profit "Conflict of Interest" policy understands the problem: trustees, by law[1], are barred from voting on matters in which they have a financial or other personal interest. This means that an employee also serving as a trustee would have to recuse themselves from every vote involving budget (since it would cover their payroll), personnel policies (since it would impact their terms of service), and decisions about certain personnel (since it could involve their boss).
This would create such a patchwork of recusals and non-involvement that it would deny the board the benefit of a fully participating member.
To avoid this issue, many boards who want the benefits of employee participation, without the inherent conflicts, use what I'll call "structured involvement."
Examples of "structured involvement" include:
- An employee serving as an ex-officio non-voting member of the board;
- An employee serving on a "Workforce Relations" or other personnel-related board committee;
- A "liaison" role with well-defined access to and expectations for attending board meetings and reporting back to employees.
For this type of "structured involvement" to work, a few things are critical.
First, the purpose of the involvement must be well-defined and crystal-clear.
If the purpose of the employee sitting at the trustee table is to channel ideas about programming and innovations, the employee should be on the committee(s) dealing with programming and innovations.
If the purpose of the employee sitting at the trustee table is to report out board developments to co-workers, the employee should not attend the board meetings, but have designated time and an agreed-upon format for reporting their observations out to the workforce (and the board should have an established mechanism for being assured that the message is getting out as intended).
If the purpose of the employee sitting at the trustee table is to give timely employee input on matters of strategic importance (budget, operations, hours, new services), then the role must be set up in such a way that they feel safe and protected providing that input.
And whenever the employee is required to do any of this work (rather than attending an open meeting[2] as a volunteer), they should be compensated for it.
Yes, I said it. The elephant in the room on this type of service is whether or not it should be paid. From the legal perspective, the moment the work has an expectation of a specific type of service (required attendance, writing reports, preparing materials for board review), it should be part of that employee's job.
On the flip side, if the board simply creates space on every agenda for a 15 minute, voluntary "Employee input" session, and there is no requirement to attend or provide service, it should be on unpaid time.
For libraries with a union, incorporating routine employee involvement in board work and meetings should be supported in the bylaws, and further implemented through the collective bargaining agreement (this is usually where compensation for such work is confirmed).
For libraries without a union, this can be accomplished through bylaws, and a resolution that further clarifies the purpose and structure of the role.
No matter what, before an employee takes on a routine, established role in relationship to a board, that board, the library director, and the employee must have 100% clarity on the way things will work, or there can be trouble ahead.[3]
To achieve this "100% clarity", boards and the workforce should assess what they want...and what they don't want...from the relationship. Some boards may want the benefit of an employee's specific experience there to call on as they make decisions for the organization. Others might rely solely on the library director for that but may want to ensure another trusted employee is there to observe board decision-making and report it out to other employees. Still others may want a non-voting "library professional committee" composed of workers, to balance a dearth of library experience on a board.
Whatever the identified need is, the structure selected (non-voting trustee, committee, committee member, liaison, routine guest) should support the board's articulated goal for the participation--and no more.
For this reason, involving employees and board operations is an important undertaking, and one not to be taken lightly. It is appropriate to have several rounds of discussion amongst both board members and interested employees, to identify the mutual goals and achievable benefits of setting such a structure in place. Whenever possible, a lawyer should review the final resolution and documentation that will set the structure in motion, to make sure it is consistent with the library's charter, bylaws, union contract, and policy...and that it doesn't create needless risk of liability.[4]
Once the purpose and structure for employee involvement is well-documented and in motion, it can be an amazingly fruitful model. Though it can be something of a pain to implement, the rewards can be many. I encourage any library who thinks there could be a benefit to explore this avenue.
Thanks for a thoughtful question!
[1] New York State Not-for-Profit Corporation Law, Section 715 (NY Not for Profit Corp L § 715 (2015))
[2] Because no matter what type of chartered library, the employees are just as able to attend as the rest of the general public, under the Open Meetings Law.
[3] Big trouble. As in: trustees not respecting the role, employees thinking they have authority and access they don't, employees voting when they shouldn't, trustees demanding service they aren't entitled to...all of which can lead to a legal mess (and be very tense).
[4] For example, a structure that has an employee seeming to participate in decision-making, if the right legal protections (indemnification and insurance) aren't in place for the employee.
