This is an excerpt of Steinecke Maciura LeBlanc’s “Governance for Regulators” handbook. To view additional sections of the handbook, click here.
c. Individual Board Member Role
Individual Board members have no authority of their own. Their authority comes from the Board itself or the committees upon which they serve. For example, an individual Board member cannot direct a committee or staff person to do anything. Neither can an individual Board member require a committee or staff person to provide them with any information. For example, a Board member cannot request that the CEO provide them with a report or update on an activity or initiative in which the regulator is engaged.
Board members work through the Board or committees. For example, a Board member could suggest to the Board that it obtain a report from a complaints committee as to the number and nature of complaints about advertising by practitioners. If the Board accepts the suggestion, then the request has the authority of the Board. Similarly, a member of the registration committee could request that the staff inquire of an applicant’s past employer as to the applicant’s knowledge, skills and judgment. Only if the registration committee concurs in the request would staff act.
This principle implies that there are proper and improper channels of communication. Directions and requests should generally be made at a meeting of the Board or committee. Once the Board or committee agree, its chair would communicate the direction or request to the appropriate staff person to implement. For substantive matters, that will typically be the CEO for Board directions or requests and the staff support person for committee directions or requests.
However, there are common-sense exceptions to these protocols. For example, if a Board or committee member, upon reading a meeting package, is concerned that they might have a conflict of interest, that concern should be addressed prior to the upcoming meeting. Ordinarily the proper channel of communication is for the Board or committee member to raise the issue with the chair who then contacts the proper staff person for guidance. However, on occasion time constraints, or a desire to avoid tainting the chair with certain information, may make it appropriate for the Board or committee member to approach the relevant staff person directly. Similarly, where there is a minor administrative issue (e.g., a Board or committee member is having difficulty opening an email attachment), they might approach the appropriate staff person directly for assistance.
The goal is to ensure that Board and committee members do not overstep their authority and that committees or staff persons are not put in the awkward position of having to manage an inappropriate request.
Individual Board Member Authority Scenario #1
Ernie Eager is concerned about whether the move towards telepractice by practitioners sufficiently respects client privacy. Ernie emails the President asking that this item be placed on the agenda and that staff prepare a comprehensive briefing note on the issue. The President can choose to propose that topic for the next Board meeting agenda, but might indicate that until the Board accepts that this issue is a priority for the regulator, staff will not be asked to put a lot of effort into preparing a briefing note.
In this scenario, Ernie followed the proper channels of communication. The President was also appropriately cautious about making significant demands upon staff before the Board determined whether such efforts were warranted.
A related issue is that individual Board members are not authorized spokespeople for the regulator. Typically the President and the CEO are the spokespeople for the organization. Thus other Board members need to be highly circumspect in their communications with external parties about regulatory issues. Making a statement that is incorrect or unapproved can create significant difficulties. Such statements may also be seen as constituting pre-judgment on the issue should the Board member have to deal with the topic later. Usually the best option is for the Board member to refer the external party to the President or CEO.
Again, exceptions may be made. For example, where there is a delicate issue and a Board member who is not the President has a past relationship with an external party (for example, the government Minister), the Board member might be deputized to approach them on behalf of the regulator. Another example might be where a Board member is at a workshop where a patently incorrect statement is made about the regulator. Sitting silently might be taken by others present as indicating agreement with the statement. It might be appropriate for the Board member to say to the group that the Board member believes that the statement just made is inaccurate. However, since the Board member is not there to speak on behalf of the regulator, the Board member would encourage those present to contact the CEO for accurate, authorized information.
Individual Board Member Authority Scenario #2
Ernie Eager is approached by a colleague, Safiyyah, who is facing a complaint from a client. The complaint appears to be about a disagreement with a client in which both sides said things they now regret. Safiyyah describes difficulties in retaining legal counsel and asks Ernie whether it would be a big deal if the response to the complaint is a bit late. Ernie is on the complaints committees and knows that extensions are routinely granted to practitioners for submitting a response. Ernie assures Safiyyah that a brief delay is not likely to be an issue. In fact, the complaint is a lot more serious than described to Ernie. The other panel of the complaints committee imposes an interim suspension when Safiyyah’s response is not received on time. Safiyyah seeks judicial review relying on the conversation with Ernie to justify the delay in responding. Staff for the regulator are forced to interview Ernie and file an affidavit from him about the conversation with Safiyyah.
This scenario illustrates the kind of difficulties that can arise when an individual Board member, without authorization, communicates with persons external to the regulator about regulatory issues.
Once a final decision has been made by the Board, all individual Board members must support it despite any opposition during the discussion and vote. Once decisions are made, the Board “speaks with one voice”. If asked about the decision afterwards, the Board member should not continue to communicate their disagreement, even if that earlier disagreement is on the public record. Rather the Board member should communicate the final decision and the rationale for that decision.
Individual Board Member Authority Scenario #3
The Board has struggled with a contentious item requiring all practitioners seeing clients to have their records be reviewed once every five years. Ernie Eager vigorously opposed the initiative arguing that records reviews should be targeted at high risk practitioners (e.g., those with a history of complaints). The motion passes with a bare majority, with Ernie voting against it. After the meeting numerous colleagues contact Ernie asking how he could have let such a motion pass. Ernie tells the practitioners that the proposal was fully debated, that the decision is final, and provides the reasons why the Board enacted the requirement.
In this scenario, Ernie is speaking with one voice.
Challenges can also arise when a Board member needs to communicate with the regulator in their capacity as a registered practitioner. For example, Board members may need to respond to a complaint against them or may wish to obtain practice advice from the regulator. It is important for the Board member to exercise careful judgment. For example, it might be appropriate for the Board member to only respond in writing to a complaint so as to avoid any perception of trying to influence the staff person supporting the complaints committee. If seeking practice advice the Board member might first alert the President and CEO so as to ensure that the communications are appropriate. The Board member should never imply that their position entitles them to special treatment.