Are Some of Your Board Members Missing in Action?

What happens when all Board members are not pulling their weight and more importantly, how do you get them to step up or step down?

Fortunately, your constitution and Board policies and procedures can come to your rescue when Board members are regularly missing Board meetings or providing late or non-existent apologies. 

1. Review your constitution.

Your constitution will have a clause that will come to your rescue, without you becoming the bad person. It is important that you avoid burning bridges with the tardy Board member, particularly if you live and work in a small community or industry. Your constitution will include a Vacation of Office clause which would normally state:

 In addition to the circumstances prescribed by the Corporations Act, the office of a Director becomes vacant if the Director:

1. becomes of unsound mind.
2. becomes bankrupt.
3. is convicted of an indictable offence.
4. fails to attend more than three consecutive meetings of the Directors, without leave of absence. ++
5. resigns by giving written notice to the Secretary.
6. dies or is rendered permanently incapable of performing the duties of office by mental or physical ill health.
7. ceases to be a Member of the Company
8. is removed as a Director by a resolution of the Members, or
9. becomes ineligible to be a Director of the Company under the Corporations Act or the ACNC Act.

 Alternatively there may be a clause in the Vacation of Office

The office of a Board member becomes vacant if

- the member is absent from more than

– three (3) consecutive Board meetings.

or three (3) Board meetings in the same financial year without tendering an apology to the President; of which meetings the member received notice and the Board has resolved to declare the office vacant.

++ When individuals accept the role of being a Board Director, they have certain legal duties that they must honour. Board Directors are still liable for the decisions being made in the boardroom, whether they are in attendance or not. Board Directors legally agree to honour a number of duties including –

• Duty of Care – they have a duty of care to be informed, follow through and honour their participation commitment. Board Directors commit to reading the Board papers prior to the scheduled Board meeting, identifying any matters that need clarifying or may be of concern and need to be raised at the Board meeting for discussion. If a Board Director cannot or does not wish to attend a meeting, they must still honour this commitment of being informed on all Board matters and share their concerns in writing when they submit their non-attendance apology. If they neglect to do this, the Board has every right to refuse their apology.
• Duty of Loyalty – they must show loyalty to the organisation, their fellow Board Directors and honour their confidentiality agreement.
• Duty of Obedience – the Board Director agrees to be bound by the decisions made by the Board of Directors and appropriate legislation. This applies whether they attend the Board meeting or not.

These duties cannot be shrugged off or ignored. If the Board Director can’t or won’t participate, then the Board has the right to not accept their leave of absence or apology, and then the constitution clause kicks in.

2. Aim for a face-to-face meeting with the Board member at the mutually convenient time.

If you cannot meet in person, then a Zoom or Teams meeting would be the next best option. That will give you an opportunity to avoid potential confusion or misinterpreting tone of voice, etc. Ideally this meeting would take place as soon as possible after the second missed Board meeting. Avoid having a face-to-face meeting in a public area to avoid potential interruptions. Set a start and finish time for the meeting when it is arranged. If it extends, that is a choice you will both make at that time.

3. Prepare for your conversation.

Out of respect for your fellow Board member, avoid winging it. Be very clear on why you have called the meeting, what outcome you are wanting and how you are going to do that. You also want the facts on hand, e.g., the Board meeting dates in the last 12 months, the dates that this Board member has missed. Plus, the dates for future meetings prior to the next AGM, when the Board member could stand down without major disruption to the Board. It would also be handy to have a hard copy of the constitution available with the Vacation of Office clauses highlighted. Remember you are aiming to give constructive feedback as harsh feedback could be counterproductive. You are not criticising the person; you are concerned about the situation and their behaviour in non-attendance at your Board meetings. This is an opportunity for growth for you as Chair of the Board or a Board Director and it is a situation that not all Board Chairs are prepared for.

4. As the Board Chair, it’s okay to ask for help.

Board members become Board Chairs for many reasons including no one else wants it. This can sometimes mean that the Chair is inexperienced and ill-equipped to deal with this potentially unpleasant conversation. There is no shame in approaching another Board member and asking them to join you at this meeting for support. You are not ganging up on the Board member, you are seeking help from a more experienced Board member, to assist you with managing this situation. Alternatively as Board Chair, you could delegate this task to the Governance Committee or another more experienced Board member.

5. Possible reasons for the Board member’s absenteeism.

Currently, all you have are the facts of the member’s no show at meetings. In reality, they may well be a private person who does not want everyone to know their business and may not have felt comfortable sharing their reason for non-attendance. Reasons for their absenteeism may be personal health issues, and/or family member health issues, workload issues, financial pressure requiring additional work or travelling for work, external studies, or loss of interest in the Board matters. Until you have the conversation you are purely guessing why their Board commitment appears to have reduced. 

6. Arrive on time and show respect.

Be prepared for the meeting, show respect, and don’t rush. Give the Board member an opportunity to broach the reason for their absenteeism when they arrive. Listen attentively and be prepared to be okay with silence. Sometimes we rush in to fill that silence void, however, avoid doing that in this instance.  

7. Discuss their options.

Let’s look at a couple of scenarios with your potential options.

1. The Board member shares that they have been experiencing some career challenges requiring extensive travel and time away from their family. They understandably prioritised family over the Board on the two dates they missed. Once you clarify if this is an ongoing situation or if it has been resolved, you can then look at an immediate exit from the Board, a deferral resignation until the AGM or a confirmation of future Board dates and their online options. One option may be for the Board member to stand down now and come back again when there is less pressure in their life. 
   
   
2. The Board member shares confidentially and remorsefully, that they have been having ongoing mental health issues and want to step back immediately from their Board commitment. Your Board has a duty of care to honour this situation and respect the confidentiality request. Together you can word up a resignation email/letter that can be emailed to the Board. It is important that you offer ongoing support in this situation and specifically ask the question, “Is there anything specifically the Board or I can do to help now or in the next few weeks/months?” “Would it be okay if I kept in touch with you? You gave so much to the Board in the past and we really value your contribution.” This is obviously a difficult time for the Board member, and you want to remove any potential pressure for them. If they don’t agree to your future contact, so be it.
   
   
3. The Board member shares that they have lost interest in being a Board member. On hearing this fact, rather than trying to change their mind, have a conversation around the reason for that lack of interest. Listen actively, this may not be an isolated incident during your Board term. Think about the future and the number of Board meetings prior to your next AGM, when it would be a convenient time for the Board for the member to resign. However, if they are not committed are you better to cut your losses now? Again, working on a resignation email/letter together will help. Ultimately this will be an inconvenience for the Board, but in the long run, it’s better to have committed Board members than those who are just taking up space and not pulling their weight.
   

8. Follow up with an email/letter of appreciation.

We assume that at the latest Board meeting, you as Chair advised that you would follow up with the absent Board member/s and you would advise the Board of the outcome of your meeting.

Firstly, thank them for their time and honesty as well as past commitment to the Board. Further to our meeting today where we discussed your non-attendance at two past Board meetings and the options under the Vacation of Office constitution clause, thanks for advising that you wish to resign from the Board immediately.

 I have cc the Board with this email, and we will table your resignation at the next Board meeting on XX. We thank you for past contribution to our Board and wish you well for the future.”

Avoid feeling uncomfortable about asking a Board member to step down due to their non-attendance. Not only have they breached the constitution, but they have also been unfair to the communities they serve. Nominating to be a Board member is a big commitment and one that is never to be taken lightly.

Finally, replacing Board members mid-term can be frustrating and challenging. However, as the Board Chair, you owe it to your Board to have active committed Board members, not missing in action Board members.