Trouble on Board

[HMC_Quest]

I am on the board of small nonprofit. Due to financial strains, the board made the difficult decision to lay off the executive director (ED) approximately two years after hiring. In addition, the administrative assistant was laid off, though she will be able to return when the cash flow situation improves. The selection of the ED was due in part to her inability to perform tasks within her job description. However, since her below average job performance was not formally documented or relayed to the ED, termination did not appear to be an option. The board's executive committee made several recommendations which would have allowed the ED to remain with the organization in a restructured ED capacity, but she had no interests in any of the suggestions. A current staff member, a gentleman who has been with the organization for 7+ years, has assumed the position of ED on an interim basis, and several board members would like him to take the position on a permanent basis. Is the board obligated to have a search for the position? The position will be restructured and given a new title, though many of the former ED tasks will remain the same. Should the former ED be given the opportunity to bid on the position? Does the job have to change in order to fend off any legal action?

 

[Beth3]

Is the board obligated to have a search for the position? Not unless the bylaws require you to (in which case you can always amend the bylaws by a motion of the Board.)

Should the former ED be given the opportunity to bid on the position? No laws require you to do so. Whether you SHOULD is another matter. You already determined her performance was inadeqate. I seldom see a good reason to put anyone through the farce that they will be given consideration for a position. Candidates can always see through that and it just aggravates the situation.

Does the job have to change in order to fend off any legal action? No. Nor is there any specific reason you've alluded to that suggests the former ED has any legal action to take. Eliminating her job due to financial constraints and then hiring someone else to fill the job when it is again available is perfectly legal. The only potential problem you have is whether the former ED will decide that the real reason she was term'd and/or not being rehired is because of a protected characteristic (her age, race, gender, national origin, religion, etc.)

I suggest you and the Board learn from this experience. Had you been timely and honest with the ED regarding her performance issues while she was employed, you wouldn't be having these concerns now.