Legal guidance for the chief elected officer: understanding your unique role and your fiduciary duties.

As a volunteer leader and member of the association board of directors, the chief elected officer is subject to the basic fiduciary. obligations of all association directors. However, the chief elected officer, as the leader of the board of directors, carries additional responsibilities. Many of these responsibilities have legal implications unique to that position.

YOUR ROLE AS CHIEF ELECTED OFFICER

Legal authority. Despite the title, as chief elected officer you do not have a great deal of legal authority to act absent authorization by the board of directors, the executive committee, or the provisions in the association's bylaws. In practice, chief elected officers can exercise significant influence, but this is primarily by virtue of their position, not the power to take action on their own. By committing the association or by authorizing activities that have not been approved by the board or the executive committee - or aren't at least consistent with previously expressed board policy - the chief elected officer may be overstepping his or her bounds legally.

As chief elected officer, you can facilitate your job by using the executive committee, which can often act more swiftly and decisively than a large board. As a general rule, the executive committee can exercise the full authority of the board in between board meetings. Some limited exceptions may exist, such as approving amendments to the bylaws, filling board vacancies, and so forth.

Running meetings. One of your most important roles as chief elected officer is to serve as the presiding officer at board meetings. From a legal standpoint, association boards of directors can take action only at a properly called board meeting - that is, the board must actually meet and adopt a motion for that action to be valid.

Especially with respect to significant actions, simply taking a poll of the board or checking the pulse of board members to see how they may feel about a particular issue is not sufficient to legally authorize action. Of course, board meetings may be held via conference call, and typically no meeting is necessary if action is approved by all directors and in writing.

As the presiding officer, you are charged with ensuring that meetings proceed in an orderly and timely manner while also allowing all participants to have a meaningful opportunity to speak with respect to each item of business. As a general rule, you do not vote at a board meeting, except to break a tie or to make a tie, though this usually does not apply with respect to votes that are done by written ballot. The rationale for this rule is that, strictly speaking, the presiding officer should at least be perceived as neutral on issues. Casting a vote could demonstrate a bias for a particular position.

Going by the book, the chief elected officer, as presiding officer, also isn't supposed to express a strong view about any matter coming before the board. In most associations, this rule is not followed in practice, and probably for good reason. In meetings, the chief elected officer is a more valuable leader if he or she can help direct the board on issues.

Note as well that all directors are entitled to participate in a board meeting and to be treated with fairness and good faith. This means that full discussion must be permitted, and when a vote is taken, all directors with voting authority/must be permitted to vote. While disruptive or obstructive behavior need not be tolerated, a director is permitted to advocate even unpopular policies and actions. He or she must not be prematurely cut off or silenced, absent disruption. It is the role of the chief elected officer to ensure that a balance is struck and that all directors are permitted to voice their opinions.

Guiding rules. Boards are subject to the bylaws of the association, and the chief elected officer must be familiar with these rules so that all actions taken are consistent with the rules. If an action of the board violates the bylaws - or the articles of incorporation or even state law - then that action is invalid.

Similarly, if the association has identified a particular parliamentary authority as governing its meetings, such as Robert's Rules of Order, you must make sure that the authority is adhered to. Even if no particular set of parliamentary rules is named, it's best to operate association board meetings according to basic parliamentary, procedures. Chief elected officers often rely on their executive directors or attorneys to ensure that parliamentary rules are followed. However, if a situation arises for which no procedure is available or readily apparent, the chief elected officer is responsible for guiding the process by notions of basic fairness and democracy.

Acting as spokesperson. In most cases, the chief elected officer is also the official spokesperson for the association, though this may be a duty shared with the executive director or another chief staff officer of the association. Because of the legal implications, exercise caution when in the spokesperson role.

First, when speaking to third parties, don't take positions, make promises, or undertake commitments that are contrary to the expressed wishes of the board of directors or that are of sufficient significance that prior approval of the board should be sought.

Second, be aware that as chief elected officer your comments can carry a great deal of weight. To alleviate defamation concerns, ask the chief staff officer and perhaps even the association's legal counsel to review any remarks that may be critical of specific individuals, companies, or products. Remember, the association is ultimately legally responsible for your actions.

FIDUCIARY DUTIES 

The chief elected officer, along with all other board members, is subject to the following fiduciary duties.

Duty to be informed. The duty of care is perhaps more accurately referred to as the duty to be informed. Directors must ensure that they have an adequate information flow regarding the activities and affairs of the association. This is particularly important with respect to finances but applies in all other areas as well. As chief elected offocer, you can assist by ensuring that all relevant information is made available to board members. In most associations, this isn't a problem since association staff are usually well aware of the need to provide information.

As chief elected officer, you also can see to it that outside advisers such as attorneys and accountants provide necessary input for the board to make rational and informed decisions. Particularly with significant board actions, courts may scrutinize the conduct of boards to ensure that sufficient deliberations occurred with respect to a particular matter and that the decision of the board was an informed and deliberate one. Again, you can control the process by ensuring that matters are fairly and fully discussed and considered.

Duty of loyalty. An equally important duty is the duty of loyalty. Very simply, this requires that board members, when taking action in their capacity as directors, act solely in what they believe is the best interest of the association and not in the personal interest of themselves, their companies, or their associates. This includes avoiding conflicts of interest.

As chief elected officer you have only one vote, the same as any other director, and in that sense you have limited power. In practice, however, you can be extremely influential. From a legal standpoint, one important way that you can use that influence is to ensure that the board's deliberations and actions are characterized by fairness, openness, and respect for the rights and views of all directors, while also making sure that the board conducts its business in an orderly and timely way. Equally important, you can ensure that the entire board adheres to its fiduciary duties of being informed and acting in the best interests of the association.

Hugh Webster is a partner at Webster, Chamberlain, and Bean, Washington, D.C. E-mail: [e-mail].