This is an excerpt of Steinecke Maciura LeBlanc’s “Governance for Regulators” handbook. To view additional sections of the handbook, click here.
e. Committee Role
Regulators usually have two types of committees: those that serve the Board and those that make regulatory decisions.
Committees that serve the Board perform functions on behalf of the Board and usually consist of mostly Board members. An example would be a Finance and Audit Committee. Typically they do “leg work” that would take up too much Board time for the entire Board to do. They generally do not make decisions. Rather, they gather information, report a summary of that information to the Board, and sometimes make recommendations to the Board. While the Board does not want to repeat the “committee work” that has been done, the committee is accountable solely to the Board, and the Board is free to accept or reject the recommendations of the committee.
Committees that make regulatory decisions are quite different in nature. Typically they are created by legislation and have a legal function to perform. Examples are committees that deal with registration, complaints, discipline and incapacity matters. Frequently those committees have non-Board members on them. In fact, the trend in recent years is to have fewer, or even no, Board members on those committees. The decisions are highly legal in nature and they are typically reviewed by tribunals and Courts external to the regulator. The Board has no authority to review individual decisions by the committee. At most the Board reviews the overall performance of the committee in various categories such as the number of cases dealt with over the period, the number of cases falling within each category, the number of appeals, the number of successful appeals, budget compliance and the average backlog of cases.
Committees often make policies affecting the processes and procedures of their own committee. Those policies should not usurp the role of the Board to make organization-wide or significant high level decisions. Nor should the policies interfere with operational matters handled at the staff level. An example of an appropriate policy for a committee to make would be to craft a decision tree of the principles to apply when making a decision. For example, many complaints committees have a flow chart that guide the considerations (e.g., nature and seriousness of the complaint, apparent motivation of the practitioner, remedial steps already undertaken by the practitioner) that goes into determining how to dispose of a complaint.
Committee Role Quiz
There is a sense at all levels of the regulator that false billing is becoming a significant problem. There has been some media coverage suggesting that the penalties for such misconduct at discipline have been too light. Who has the authority to make policies to foster more severe sanctions at discipline for false billing?
This quiz illustrates the difficult task of identifying who has the authority to make different kinds of policies. The answer depends on the details of the nature of the policy.
Committee Role Quiz – Proposed Answer
Every component of the regulator can make some part of the policy.
- The Board could enact a policy stating that false billing is serious misconduct warranting serious consequences. The policy could articulate the types of harm that results from such conduct. The policy could be directed to the profession and the rest of the organization.
- The CEO could develop a policy for staff instructing prosecuting counsel to seek the highest defensible sanction for a discipline finding of false billing.
- The discipline committee could conceivably develop a sanctioning guide for various types of findings to promote consistency and to recognize aggravating and mitigating factors. However, any such policy would have to emphasize that panels in individual cases are not fettered by the sanctioning guide.
Some regulators, particularly those with large Boards, have an Executive Committee made up of a portion of the Board. An Executive Committee is sometimes a hybrid of the two types of committees: it can be both a Board committee and a committee that makes regulatory decisions. More frequently in recent years Executive Committees are becoming just a Board committee whose primary purposes are to make urgent decisions that cannot await a full Board meeting and prepare the agenda and materials for Board meetings. There is a trend in the regulatory world to reduce the size of regulatory Boards and eliminate Executive Committees.
Committee Accountability Quiz
The Complaints Committee of a regulator rendered a highly controversial decision taking no action on a complaint that a practitioner had assaulted the practitioner’s spouse. The spouse ended up in the hospital for a week with serious injuries. The Complaints Committee reasoning was that the conduct was not work related. There are numerous articles in the media about the case and the Minister has called the CEO expressing grave concerns with the decision. At the subsequent Board meeting, which of the following options is most appropriate?
- Setting up a task force to review the broader issue of the scope of the complaints process and recommending any appropriate changes to it.
- Removing the members of the Complaints Committee and appointing new members who have a track record of expertise in intimate partner violence.
- Directing the Complaints Committee to reconsider its decision.
The task force option is the most suitable because it is consistent with the Board’s strategic planning and high-level policy role. Removing and replacing the members of the committee is probably not appropriate because it interferes with the independent decision-making role of the committee. It could even create an appearance of institutional bias despite the noble motivation. Unless the enabling statute permits it (which would be highly unusual), the Board does not have the legal authority to direct a decision-making committee in an individual case.
Another possible option not listed in the scenario is for the regulator to initiate a judicial review or appeal of the committee’s decision. Depending on the scheme of the enabling legislation, this option might be exercised by the CEO, or failing that, the Executive Committee, rather than the Board itself. Initiating an appeal or judicial review of the decision has the benefit of not directly interfering in the operation of the committee, like options ii and iii do. Rather, the regulator would be acting as a party to the discipline hearing. Those previously involved in the matter, such as members of the complaints committee that referred the matter to discipline, may need to disqualify themselves from this discussion.