Board hires and supervises management 4. The question of what circumstances are appropriate ones for indemnification is not always an easy one to determine. In this situation indemnification may be allowed. Conclusion. meeting, the president of the board of directors appoints a nominating committee to develop a slate of candidates for election to the board. When it comes to Corporate Risk Management and Governance, a company’s Board of Directors will play a vital and pivotal role for the effective governance of its bank. Legal Responsibilities of Cooperative Directors March 19, 2013 2013, Foster Swift Collins & Smith, PC. Reimbursement for a director who was careless may encourage that type of behavior. Annual audits of the cooperative’s financial records are the responsibility of the board of directors. It is possible for a cooperative to obtain insurance to cover any payments that a director might be required to make. Directors are protected from attacks on their decisions based on hindsight by a legal doctrine developed by the courts and known as the Business Judgment Rule. However, the authority of the board is subject to the limitations imposed by the Memorandum of Association, Articles of Association of the company and there relevant provisions of the Companies Act, 1956. Three recent Delaware decisions where the Business Judgment Rule was raised have attracted much attention, in large part because of the results. Despite the importance of the board of directors, many cooperatives do not invest enough effort in identifying and recruiting potential members. Board member recruitment is complicated by the fact that the selection of the board is a member responsibility. This suggest that the directors should have a hands-off approach to the recruitment and nomination process. Unfortunately most members have a poor understanding of the operations of a board of directors or on how well directors perform. Members may nominate or re-elect individuals with good political skills sometimes to the detriment of those with strong business skills. Their main role is to perform the duties of strategic planning and oversight. Careful concern for and compliance with the duties and responsibilities imposed by law on directors will prevent problems. Each will be discussed in turn. A hasty and ill-conceived decision will not withhold judicial scrutiny. The Board of Directors has a key responsibility to establish the “tone from the top” through its attitudes, actions and communications. duties_and_responsibilities_of_cooperative_board_members.pdf. If a director is attentive and diligent, loyal and acts with the care of a prudent person, then his or her actions cannot be successfully challenged. Duty of Loyalty. Other cooperatives have had a long experience with outside directors. The general standard contained in Subsection (a) above (i.e. Although generally indemnification is a good idea, like any other good idea, it can be abused. (b) In discharging his (sic) duties a director is entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by: (1) one or more officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented; (2) legal counsel, public accountants, or other persons as to matters the director reasonably believes are within the person's professional or expert competence; or (3) a committee of the board of directors of which he (sic) is not a member if the director reasonably believes the committee merits confidence. The role of the board of directors in corporate governance is to review the programs selected by the CEO that are most likely to achieve the financial objectives set for the company. Absent bad faith, fraud or selfdealing on the part of a director, courts routinely refused to question the propriety of a board decision. 2015-41595-24254 from the USDA National Institute of Food and Agriculture. Generally, it is the board's responsibility to identify an organisation's direction and goals, and management's responsibility to decide how to implement these plans. The law recognizes and accepts that board members may not always be correct in their choices or decisions, but it holds them accountable for being attentive, diligent, and thoughtful in considering and acting on a policy, course of action, or other decision. The question of who makes the determination to indemnify or not to indemnify is thus raised. Indemnification. The cooperative board of directors has the primary legal authority for the firm. The board of directors is responsible for representing members, establishing the policies of the cooperative, hiring and supervising management, acquiring and preserving assets, maintaining the cooperative character of the business, assessing the co-op’s … Almost all boards that have them find outside directors make a significant contribution. 1 It's the board's job to: The director who is interested in the opportunity should not participate in the discussion about or vote on the opportunity. It is likely and even desirable that the board will have disagreement on a decision. A good board has diversity not only in composition but also in thought process. However, after amble debate the board must reach a decision. When a decision is made, the board has spoken and the board members should respect the majority decision. The board should expect that the CEO and the membership to respect a 5-4 vote exactly like a 9-0 vote. Board members should support the decision of the board outside the board room and attempt to speak with one voice. Even when a board member disagreed with the majority decision they should avoid sabotaging the board by suggesting to members that a decision was incorrect. Because of the value of acting as a unified board, many boards tries to reach unanimous decisions whenever possible. As one board member remarked, while it is important the we explore and discuss an issue from all sides, we try and reach a consensus opinion. If we canât come to a consensus on an important decision, that might be a indication that we havenât talked through it enough.â. Board represents cooperative members 2. The board is responsible for the overall governance, management and strategic direction of the organisation and for delivering accountable corporate performance in accordance with the organisation’s goals and objectives. Discharging these responsibilities means thinking not only about particular tasks but also about ways of working as a board, and ensuring individual directors can be fully equipped to play their part. If there are enough board members not being sued to make a quorum or appoint a committee, then generally the remaining board members make the decision. The amount of the annual retainer varies.  We typically say that the board has one employee: the CEO and the CEO manages all of the other employees. The board works with the CEO to develop and update the cooperativeâs mission and to set strategic goals. The board makes long run decisions on capital structure. It is the board of directors that actually signs a long-term loan agreement. The board also makes annual decisions in distributing profits in cash and retained patronage and whether to retire previously issued equity. Through those decisions they determine the cooperativeâs level of equity. The board also approves legal, accounting, insurance and banking relationships and oversees the annual audit. The board establishes policies. The board chairman presides over the cooperativeâs annual membership meeting. Of course, the director involved should not participate in the discussion about or vote on the contract. The terms of various policies may differ, and the cooperative should determine which types of director behavior it wishes to protect. About half of the states make a specific exception to the typical requirement of an all-member board, permitting the appointment of non-member directors. If the cooperative, after carefully considering the opportunity, decides against pursuing it, then it is proper for a director to take advantage of the opportunity. At its core, “fiduciary responsibility” is the responsibility to treat the resources of the organization as a trust, and the responsible board will ensure that these resources are utilized in a reasonable, appropriate and legally accountable manner. This includes attorneys, consultants and accountants hired by the cooperative to provide information, data or opinions. The role of the board of directors in strategic management is directly linked to the CEO’s role in the process. The role of the Board during this current crisis should be to ensure that management focuses on five key areas. This scrutiny includes the investment decisions made by the company's executive team, and the expenditures required to support the efforts. good faith, ordinary care and best interests) applies when judging whether reliance on a report was reasonable. While the phrase often is used to refer especially to financial resources, it applies to the stewardship of all of the assets and resources of the organization. In general the appropriate exercise of fiduciary responsibility includes developing and implementing an ongoing system to monitor and assess the financial condition and performance of the cooperative, establish a system for budgeting the cooperatives financial resources, adopt a set of policies to govern the acquisition and use of financial resources including a formal risk management plan and implement a formal external review process, such as an independent audit to assess the cooperatives, fiscal condition and performance including the effectiveness of its internal controls. High School Cooperative Syllabus/Lesson Plans. Corporate risk taking and the monitoring of risks have continued to remain front and center in the minds of boards of directors, legislators and the media, fueled by the powerful mix of continuing worldwide financial instability; ever-increasing regulation; anger and resentment at the alleged power of business a… Insurance. Therefore, director decisions are based not only on what is most profitable, but also on what the needs of the members are. 1981), Smith v. VanGorkum, 488 A.2d 858 (Del.Sup.Ct. Responsibilities of Management. As the board acts as trustee of the cooperative’s assets, it is responsible for safeguarding, auditing and appraising the cooperative’s financial resources. There are times that a director may want to record a dissenting vote even when it is clear that it will not change the majority decision. A board member may have a strong opinion on an issue and hope that a dissenting vote will encourage the other members to carefully consider their decision. In the rare instances when a director feels that the board is operating illegally or unethically, a director should cast a dissenting vote and have it reflected in the minutes. In some cases, a dissenting director is not held liable for legal issues resulting from a majority decision which results in an illegal action. Duty of Attention/Diligence.    The board hires, directs and evaluates the general manager or CEO. It is important that the directors act responsibly in delegating tasks to responsible individuals. While the facts of these cases are not especially relevant to a cooperative, the careful and close scrutiny of the director decisions which the Delaware Supreme Court engaged in, despite the Business Judgment Rule, is relevant. In either case, the bylaws of the cooperative should contain a provision allowing such reimbursement in appropriate circumstances. Effective board of director meetings and efficient decision making is both a science and an art. The board chair usually works with the CEO in determining the meeting agenda. An annual calendar may be used to cover specific topics throughout the year. The board chair has a key role in board effectiveness   In addition to helping to set the agenda the chair leads the discussion and tries to ensure that every board member has a chance to express their perspective. A good board chair encourages board members not to take a stance on an issue until both the advantages and disadvantages have been discussed. When possible, the chair may want to schedule an issue as a discussion item at one meeting and bring it up as an action item for a vote at the next meeting. That helps to prevent the board from making rash decisions due to the passions of the moment. Similarly questions about the amount to be paid or to whom it is paid may be at issue. In serving, they often look for guidelines to Board establishes cooperative policies 3. In the past, any type of contract between a director and the cooperative would have been subject to cancellation at any time. Board is responsible for acquisition and preservation of cooperative assets 5. Cooperatives are member organizations, unlike most other businesses. A director does not guarantee the result of his or her decision, but that it was arrived at honestly and prudently. For the larger cooperatives this generally varies between $150 and $300 per day (Weick, Anderson, Henehan, 1997). This places a unique responsibility on cooperative directors to be sensitive to the needs of members and balance their conflicting interests. Generally, it is required that a director have acted in good faith and believed his or her conduct was in the best interests of the cooperative or not unlawful, in the case of a criminal proceeding. In the recent past a trend has emerged whereby courts will look more closely at the decision making process itself to determine if the directors acted reasonably. Therefore, the clear message for directors is that more careful scrutiny of the decision making process itself will now occur. A director is entitled to rely on information, reports, opinions or statements, including financial statements and other data prepared by an officer, employee or committee of the cooperative when the director reasonably believes that the source of the information is reliable and competent in the area. These three areas are sometimes referred to as a duty of attention or diligence, a duty of loyalty and a duty of care. In every decision the board makes, they must consider how it will affect their employees, customers, suppliers, communities and shareholders.Good corporate governance relies on distinct differences in the roles between board directors and managers. Because of increased exposure to risk of law suit, which is expensive even if the directors prevail, many persons are hesitant to serve on a board of directors. (c) A director is not acting in good faith if he (sic) has knowledge concerning the matter in question that makes reliance otherwise permitted by subsection (b) unwarranted. General Duties and Responsibilities. Broadly stated, the Rule is that if the directors of a business acted in an informed basis and in good faith while making a decision, then the decision will be upheld despite any adverse consequences that resulted from the decision. Bill Fitzwater Cooperative Chair, Oklahoma State University. 2. are not employed by or financially interested in a competing enterprise or a business selling electric energy or supplies to the Cooperative. Directors must participate actively in the affairs of the cooperative. 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