This is an excerpt of Steinecke Maciura LeBlanc’s “Governance for Regulators” handbook. To view additional sections of the handbook, click here.
c. Conduct Unbecoming
Board and committee members representing a public interest regulator must demonstrate a high level of integrity. Appropriate conduct must be exhibited both while performing duties on behalf of the regulator and while engaging in personal activities. Unbecoming conduct can indicate that the Board or committee member is unsuitable to hold their position with the regulator.
For example, claiming even a small false expense could undermine the ability of the Board or committee member to hold practitioners to account for false billings. Similarly, even a small request that reeks of entitlement, such as asking a staff member to pick up a Board or committee member’s dry cleaning, damages the credibility of the organization.
Comments on social media can also render a Board or committee member unfit to remain in office. An example might be a posting a sexist, ageist or racist comment. Another illustration could be making a comment that is insensitive towards a vulnerable group, particularly a group served by practitioners. While Board and committee members are entitled to have their own personal views on societal issues, some opinions are irreconcilable with the values of the regulator.
Criminal or regulatory charges or findings can result in a Board or committee member being unable to continue with their duties. If the concerns are unproved, the Board or committee member might still be asked to take a leave of absence from their duties, or even to resign their position if the allegations are serious or have been screened to some extent. The presumption of innocence that exists in the criminal process may not be an adequate response where the reputation of the organization is at stake. For example, it may be incompatible for a regulator whose practitioners serve vulnerable populations to have a Board member charged with intimate partner violence and that fact published by the media.
Similarly, where a professional member of the Board or committee is the subject of a complaint or investigation by the regulator itself, serious perception issues can arise. Just like for the case of criminal charges, the Board or committee member may be requested to take a leave of absence if the concerns are serious or have been screened. It is very important that there be no perception of the Board or committee member receiving special treatment or interfering in any way with the investigation. A finding of professional misconduct will generally result in the Board or committee member being removed from their position.
It is impossible to identify every type of conduct unbecoming that could cause challenges to the Board or committee member’s continued service with the regulator. However, some examples are often provided in the regulator’s policies. For example, most regulators have a policy dealing with discrimination, abuse and harassment of any person working for the organization. These policies should be reviewed carefully. Some regulators also have a Code of Conduct for Board and committee members that covers some of these types of concerns.
Conduct Unbecoming Scenario
A staff member reports to the CEO that Ernie Eager makes her feel uncomfortable. For example, Ernie has commented on her “outfits” a lot. Ernie has also mentioned that he has an open marriage. At the last committee meeting Ernie suggested that they have dinner together to discuss a complicated new case. What is the CEO likely to do?
This scenario illustrates a hugely awkward governance situation. The CEO has an obligation to protect the staff member from harassment. However, Ernie Eager is a member of the Board (i.e., the CEO’s “boss”). There likely is an organizational policy that requires such concerns to be investigated. Given the power dynamic, it is probable that an external expert would be retained to conduct the investigation and make a report with recommendations. During the investigation the staff member and Ernie likely could not be scheduled to work together. One of them, likely Ernie, would have to be reassigned. The overall outcome depends on the findings of the investigation and could range from no action, to remedial action (e.g., Ernie taking gender and boundary sensitivity training), to censure or even removal.