The secretary of a nonprofit corporation is typically a required officer position under state laws. The post on the Duties of the Secretary of a Nonprofit Corporation written by my colleague Michele Berger wrote in 2017 remains one of the most read on our blog. This post expands on some of her past guidance and recommendations.
Should the Secretary be a Board Member?
Some nonprofits distinguish between officers of the corporation and officers of the board. While this distinction is generally not reflected in state laws, certain officer positions are customarily reserved for board members. The chair of the board should certainly be a board member. With respect to the secretary, it depends.
Ideally, the secretary should be a board member because they are generally charged with recording minutes of the board meetings. While it’s possible to have a staff person serve as secretary and take minutes, this would not be possible when the board enters into executive session. The secretary may also be the officer best positioned to identify when the board is operating out of compliance with its governing documents (e.g., articles and bylaws). A staff person may find it awkward to call out the board under such circumstances and may be operating under a conflict of interest if the chief executive and a majority of the board are not in alignment on certain decisions and actions.
If the board finds it helpful for a staff person to take minutes for board meetings so the board member/secretary can fully participate in board discussions and deliberations, it may be useful to elect a staff person to serve as an assistant secretary. The secretary may then review and finalize any minutes recorded by the assistant secretary following a meeting.
Despite the foregoing, some nonprofits may find it advantageous for the secretary to be selected from among the staff. In certain cases, the chief executive may serve as the secretary if state law does not prohibit an officer from holding these dual positions. In other cases, it may be a trusted administrative employee who can fulfill many of the duties and roles described below outside of executive sessions. However, the board must ensure that such employee secretary recognizes their service to the board and not only to the chief executive, and the board must consequently provide some protections for the employee secretary.
Position Description
Some nonprofit corporations have adopted detailed position descriptions for its principal officers, including the secretary. Others may have a brief summary of such descriptions in the corporation’s bylaws. Ideally, a corporation will want to have a description for the secretary that clearly sets forth their duties and the authority provided to them in order to meet such duties.
Legal Compliance
An attorney may make for a good secretary because their training and experience may allow for identifying compliance issues during and in between meetings. Compliance issues that a secretary may focus on include:
- regular meeting frequency
- board member attendance
- quorum and board action validity (e.g., any supermajority voting and written consent requirements met)
- timely and regular elections
- authorizing resolutions for officers, committees, and others (i.e., board delegations of powers sufficiently defined)
- timely approvals of budgets, plans, audits, etc.
- maintenance of confidentiality (which may include preventing discussion of legally confidential items in the presence of guests – like a management consultant – or of other sensitive information in the presence of certain employees who are not required to be aware of such information (e.g., HIPAA-protected health information)
Minutes of Board Meetings
The documentation of board meetings has both an administrative and strategic component. We have previously published posts on Board Meeting Minutes – Part I and Part II – that focus more on the administrative component. From a strategic perspective, here are a few tips:
Record decisions for important board actions with a brief description of the key considerations and materials relied upon to help maintain institutional knowledge. It may be important for a future board to understand why the board took a certain action in the past, and the following possible reasons would lead to very different understandings of the context:
- to best advance the mission short-term
- to best advance the mission long-term, even if it might not appear to do so in the short-term
- to advance core organizational values and also further the mission
- to alleviate the serious discontent of staff or key funder or donor
- to mitigate the serious risk of a public relations nightmare
Ensure the minutes do not frame board discussions to reflect discussions that would likely harm the organization, the board, or possibly individual board members. For (voting) membership organizations, the members may have inspection rights to see the minutes. The minutes may also be open to the public under certain sunshine laws. Further, the minutes would be open to review by a state charities regulator or possibly the IRS.
Identify directors who have conflicts of interest regarding certain matters before the board and whether they abstained from voting on such matters and/or were recused from participating in the final deliberations and voting by other directors.
Board Binder / Record Book
Minutes of the board meetings should be maintained in a board binder or record book except for minutes of executive sessions, which might need to be maintained separately by the secretary to keep it confidential (the secretary might work with the nonprofit’s law firm to maintain such records). If the minutes are generally accessible by the staff, such confidential information should include any executive performance reviews and compensation approvals.
The board binder should generally also include the governing documents, organizational statement of purpose (mission, vision, and values), codes of conduct and other governance policies, actions by written consent, board member and officer roster and contact information, committee charters and meeting minutes, and the most recent audited financials and Form 990 (if applicable).
Board Meeting Agendas
The agenda for board meetings is typically created by the chair of the board together with the chief executive. However, the secretary may also be involved as a key partner to help ensure all required actions are taken. The secretary may serve as the officer whose role is to ensure that the meeting will be productive (perhaps aided by a post-meeting assessment distributed to all board members); the meeting prep notes are timely distributed (ideally about one week before the meeting or distribution of the written consent); and the board is regularly reviewing and guided by the nonprofit’s mission, vision, and values.
Community Voices
For nonprofit corporations that value proactively engaging community input, the secretary may be a key gatekeeper for communications between the nonprofit and the community to help ensure that (1) the solicitations for input are appropriate and advantageous to the nonprofit, and (2) the community input is appropriately acknowledged and shared with the organizational leaders.
External Changes
The secretary may monitor, or cause to be monitored, important changes to the laws and the external environment what will impact the nonprofit. The secretary may then share such information with the chair of the board and possibly the entire board. While board can typically only take formal actions at a meeting or by written consent, the secretary can help set up: (1) asynchronous discussions by email and (2) guidance as to informal subgroup discussions, including any reporting on such discussions.
External Communications
Certain external communications, including those involving lobbying or political advocacy and crises management, may benefit from the input of secretary. The secretary may bring perspectives otherwise not possessed or considered by the chief executive or the staff.
Board Member Orientations
As the officer generally in charge with the recordkeeping of the corporation, the secretary may be best positioned to create, or cause to be created, an appropriate board orientations package to be sent to all new board members and promising prospective board members.