Husband and wife together on a board

Husband and wife together on a board

In not-for-profit governance the question sometimes comes up as to whether or not it is OK for both husband and wife (or equivalent) to serve at the same time on a governing body (board, committee or similar). Not common maybe, but the thinking I go through below may help with other questions as well.

I am not a lawyer, and this is not legal advice, but if this happens to you (and you can’t find a lawyer), you should first turn to the Act of Parliament under which the organisation is constituted or registered. However, on this question you’d most likely draw a blank. So then you should look at the organisation’s constitution. Experience tells me though that this document will be silent too. This means that so long as you didn’t have any other rules made by the members under the constitution there would be nothing legally against the practice.

However, just because it is legal, doesn’t necessarily make it the wise thing to do in your organisations – it’s likely that the drafters never considered the issue. Good governance is about more than the law. (I like John Carver’s definition: “the purpose of governance is to ensure, usually on behalf of others, that an organization achieves what it should achieve while avoiding those behaviours and situations that should be avoided” [www.carvergovernance.com]. So finding nothing in the rules shouldn’t be the end of the story. You need to consider whether having husband and wife serving together is acceptable to your organisation, that is, whether it helps to achieve your mission while not raising a risk to an unacceptable level. Another way of looking at it would be to ask, is the practice consistent, not only compliant, with our governing law, but is it consistent with the spirit of that law?

There are two good reasons for doing this, one immediate, one usually not so immediate. First, if you decide that the practice is unacceptable, it may be that, because you have people of good will as candidates, they may voluntarily give up their right under the rules. And only one joins the governing body. Second, you would then be aware of an amendment that you should make to your constitution when you next go through that process.

So how do you decide whether or not the practice is acceptable? I’d suggest going back to the purpose in electing people to the governing body. If they are representatives of the membership, and that is usually the case, then are you getting the best representation by two of your spots being taken by a husband and wife?

Presumably you would prefer two people who will act independently. But the presumption with a husband or a wife is that they will influence, or be influenced by, their spouse. Australian accounting law, for instance, recognises this. (In fact it is not just the husband-wife pairing that we should question, but those that the applicable Standard, AASB 124 Related Party Disclosures (www.aasb.gov.au) describes as ‘close members of the family of a person’.)

For however much they may try to be conscientious and objective, it would be common for them to have the same view on most issues. In the worst case, they function as a perfect unit and you then have one contribution and one vote where there are meant to be two. I think it is fair to say therefore that the lack of independence of husband and wife from each other reduces the diversity of the governing body, diluting the number of independent minds considering the issues being decided on behalf of the membership.

Even if the husband and wife were able to demonstrate that they were in the habit of acting independently, showing what professional accountants call ‘independence of mind’, you should still ask, again reasoning from this profession, whether an informed average member of your organisation would perceive the husband and wife to be independent? Probably not. In which case the ‘independence in appearance’ test is violated.

Of course, if the proposal includes the husband and wife holding offices on the governing body that allow them to together make decisions that bind the organisation without reference to the full body, then I think you’ll quickly conclude that, at a minimum, such membership is very unwise.

One argument that has been advanced for allowing husband and wife to serve together (not in offices though), is that it is less likely that their motivation will dissipate than for an independent member. And their being joined may mean that they are more likely to remain focussed on the organisation’s mission. But is this enough to overcome the misgivings above? Probably not, especially when you consider the flipside of the motivation argument: what if their marriage becomes rocky – a far from unlikely scenario – and this affects their behaviour on the governing body?

A further disadvantage is that if the family leaves town, unless both parties are willing and the rules allow digital meetings, you will lose two members, not one. Better then to lose one willing one now than two compromised members later.

The bottom line: they may love each other but I don’t think they should sit together.

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