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Vol. 42, No. 5

Does a new day demand a fresh look at association governance? Provocative advice at BLI

by Marilyn Cavicchia

If your association is feeling the stress of increased competition, an expectation of nimbleness and speed, and a structure that’s more than a century old and perhaps doesn’t work as well today, take heart: You’re not alone.

In fact, it isn’t even just other nonprofits that find themselves struggling to keep up: A recent Harvard study found that companies are dying at a faster rate than ever before, in large part because they fail to adapt to the complexities of today’s marketplace. As Amazon’s model becomes more entrenched among consumers, it increases everyone’s expectation of speedy turnaround. And even General Electric, once held up as a shining light in management and leadership, has lately fallen into boardroom dysfunction, which has affected its stock prices.

That’s all according to Mark Engle, principal at the Association Management Center, speaking at the 2018 ABA Bar Leadership Institute. The problem at GE, he said, has potential lessons for bar associations as well: The company failed to adapt to the current environment by cultivating a culture of “constructive conflict” in which civil disagreement was welcome. Instead, Engle believes, it remained focused on hierarchical structure and top-down decision making.

Engle was joined by Dave Bergeson, account executive at the Association Management Center. Together, Engle and Bergeson shared their ideas—some, rather challenging—on how association boards and governance models in general may need to change with the times.

What would you like to change about your board?

Before sharing their own assessments and advice, Engle and Bergeson asked attendees what one thing they would like to change about their bar’s board. Here are some of the responses:

  • The board needs more diversity.
  • The board is too large.
  • The work distribution is unequal, and some individual members are not as engaged as they should be.
  • The board needs to work faster.
  • The board should focus on strategy and policy, not micromanaging.
  • The board needs to have more of a sense of purpose.

Bergeson mentioned the following changes that, ideally, he would like to see associations adopt for their boards and other aspects of governance:

  • Eliminate the house of delegates (more on this later).
  • Establish more effective communication between the board and committees.
  • Pare down the number of committees. If they have to exist because they’re in the bylaws, Bergeson advised, at least make sure that each has a clear task or set of tasks for the year.
  • Improve the relationship between the board and section leadership. In many associations, Bergeson explained, there’s “dual-track governance,” with one group of leaders on the board and the other heavily involved with the sections (with some crossover). Think about ways that the two can “play well together,” he suggested.

How do you build board engagement?

Engle, too, has seen the phenomenon that was mentioned, in which some board members shoulder a lot of the work while others remain uninvolved. In fact, he was once a not-very-engaged member on a board of 35 people. Why did he hang back? “Size matters,” Engle said, and in this case, the board was just too big. With 35 or 45 members, he explained, it’s not likely that a board will meet often enough to be effective and engaged—and a small “power group” will likely emerge within the board, making others feel as if their contributions don’t matter much, anyway.

Watch out for that unequal distribution of power, Engle cautioned: “There is no pecking order in the decision room. One vote equals one vote.” Even the president shouldn’t throw his or her weight around, he added.

Sometimes, boards are large because they need to have seats for different geographic areas, or perhaps different practice areas. “Representational governance is a strike against you,” Engle believes, because a board member’s duty of loyalty is to the whole organization, not his or her practice area or region.

Board members should be selected as “subject matter experts” in areas that are critical to association governance, Engle said, and it should not be assumed that any successful lawyer would make a great board member.

“I can think of 20 million ways that running a bar association is different from running a practice,” Engle said, adding that experience in reading and working with budgets is an area of knowledge that is especially important for board service.

The case against the HOD

Engle and Bergeson were unstinting in the criticism of the house of delegates model, which they consider to be ill suited to a time that demands quicker action and an entrepreneurial spirit. In the current environment, Engle asked, how can an association make good decisions if its ultimate voting body has hundreds of members and meets only twice a year?

Removing the house of delegates in favor of a smaller decision-making group that meets more often is something that Engle says many associations discuss—even issuing reports that make this recommendation—but find difficult or impossible to execute. Why? Because they fail to walk things back far enough to see who has the authority to actually do away with the HOD. That’s right—it’s the HOD itself.

Engle praised the Colorado Bar Association, which he said recently changed its Board of Governors from a large, HOD-like body of 150 members to one that has 22 members and meets six times per year. Making those changes took “three years—and a lot of political capital,” Engle noted.

Toward a more generative agenda

“If you don’t want the board to dwell in details,” Bergeson advised, “don’t put tons of details in the agenda.”

Bergeson recommended dividing each board meeting agenda into three areas:

  • strategic/foresight, meaning the decisions that help set a course for the association’s future;
  • fiduciary/oversight, meaning the things the board has to do, to ensure that the association is running properly (and Bergeson is a fan of handling many of these via a consent agenda rather than discussing them at length in person); and
  • generative/insight, in which the board discusses trends in the broader environment or topics that merit their attention but don’t yet warrant a particular decision.

Engle added that in cases where board members are not engaged or say they’re not sure what they’re supposed to be doing, it’s often because the board is spending too much time on fiduciary matters.

The generative discussion is a time when the board can have an “unfiltered” conversation with “no boundaries,” Bergeson said; you can spark such a discussion informally by spending the first hour of the meeting simply going around the room talking about what each board member sees in the legal profession or in the broader culture that might be relevant to the association. If that’s too loose, Bergeson said, you can also send a white paper in advance with a note indicating that it will be discussed at the meeting.

Engle stressed that the generative portion of the meeting is a great opportunity to increase board engagement through discussion that is intellectually challenging. “We should all come out exhausted if we’ve done it well,” he said.

(For much more information, including research on high-performing associations and their governance, please see the slides from this program.)