The Board of Directors lies at the heart of nonprofit governance. Under most state nonprofit corporation statutes, “the affairs of the corporation shall be managed by or under the direction of the board of directors.”[1] If the Board’s composition is unclear, the organization, its mission, and its stakeholders may be at risk. Who is on the Board, and why is its composition so vital?
Consider the following all-too-common cautionary tale. Passionate individuals with a bold vision form a nonprofit organization. They recruit initial directors, hire an Executive Director, and adopt bylaws. The nonprofit launches with excitement, raising significant funds and carrying out impactful programs. As time passes, however, enthusiasm wanes, and a plethora of problems can unfold as follows. Board meetings become infrequent, attendance is inconsistent, and written minutes are not kept. Elections occur but results are not recorded, term limits are ignored, vacancies remain unfilled, “informal” procedures replace the bylaws, and individuals act beyond their authority. Eventually, tensions and possibly even disagreements arise, amidst the foggy and uncertain leadership. Perhaps a key founder departs, leaving no clear vision. Even word and adverse factions develop from which directors’ board status and authority are challenged. The disputing parties descend onward into costly litigation, draining resources, distracting the nonprofit from its mission, and threatening the organization’s very survival.
In stark contrast, and desirably so, clarity about the Board’s composition, its authority, and limits, establishes the cornerstone of good nonprofit governance. As more fully developed below, these healthy qualities of Board clarity, unity, and strength depend on crucial organizational and board practices such as tracking director terms, recording minutes, filing reports, addressing conflicts, defining roles, and adopting dispute resolution procedures. While these measures may seem mundane and routine, they are critical! Careful observance of such practices should safeguard the nonprofit’s mission, maintain smooth operations, and prevent costly disputes.
Clarity through Governing Documents and Board Records
It is axiomatic that a nonprofit’s Board, its members, donors, other stakeholders, and government agencies (as applicable) need to know who serves on the Board of Directors – not only for today but for days past. The history of the Board’s composition should be clearly documented through careful development and maintenance of a nonprofit’s records in keeping with applicable state statutes and the organization’s governing documents. A chart listing all directors’ names, year of election or appointment, term end date, and any related information (e.g., ex officio status, if applicable, term limit) may provide a helpful and concise reference tool.
Note too that the term “Board of Directors” refers only to those appointed as directors. In contrast and as explained further below, officers are leaders with special assigned roles (e.g., President, Treasurer), and such leaders may or may not additionally be directors with general governance responsibilities.
Governing Documents as the Framework
Governing documents and recordkeeping procedures should be drafted and maintained in compliance with applicable state law and consistent with nonprofit best practices, ensuring that the organization can clearly demonstrate who its directors are and how they were elected or appointed. In particular, the Articles of Incorporation (sometimes called a Certificate of Incorporation) and the Bylaws should be carefully aligned with the applicable state’s nonprofit corporation act, and together they should clearly address core governance matters such as the following:
1. Membership. For membership organizations, bylaws (and, in some states, Articles of Incorporation) should define the powers of members, notice requirements for member meetings, quorum, and the thresholds for valid action. In some contexts, individuals described as “members” may not be statutory members under the nonprofit corporation act, for example, in churches whose members do not elect the Board.
2. Board Size. Most nonprofit statutes require a minimum of three directors.[2] Illinois law requires a minimum of three directors and permits the Board to establish a range in the number of directors allowed without amendment to the Bylaws (with the maximum not exceeding the minimum number by more than five).[3] Each Board of Directors must proactively determine how many directors will serve on the Board and regular changes in the composition of the Board (elections, resignations, removals, for example).
3. Board Terms. Director terms should be clearly defined, with expired terms either renewed through formal re-election or filled by new appointments. Failure to address expired terms can result in directors serving without proper authority.
4. Term Length and Limits. Governing documents should specify the length of director terms, whether re-elections are permitted, and whether limits on consecutive years of service apply.
5. Roles of Governing Bodies. Organizations that use leadership titles such as trustees, elders, advisors, or officers must specify in their governing documents whether these groups are equivalent to, or subordinate to, the Board of Directors. Even where such bodies exercise oversight in particular area, the Board remains ultimately responsible for the corporation’s affairs. For this reason, the Board should articulate clear expectations for each director, such as through a written memo provided at the outset of a director’s service.
6. Delegation to Officers. Officers carry out the executive function of the organization, ensuring that the Board’s vision and direction are implemented through staff and volunteers. The Board itself is charged with mission, vision, oversight, and fiduciary responsibility, while officers serve as the bridge between those responsibilities and the day-to-day work. In this sense, the organization can be viewed metaphorically as an hourglass: the Board at the top providing vision and oversight, the staff and volunteers at the bottom as the “hands and feet” of the organization’s programs, and the officers as the middle pinch point ensuring that the Board’s directives flow effectively into the organization’s operations. The Bylaws should define which powers, if any, are delegated to officers, such as signature authority for financial transactions. Careful drafting prevents officers from assuming authority that properly belongs to the Board.
7. Founder Authority. A founder may play a key role in forming and funding the organization. However, any ongoing role for such individual—including any legal authority—must be expressly set forth and limited in the bylaws. Clear boundaries ensure a healthy transition to new leadership and prevent overreach or conflict. Without such safeguards, organizations may fall victim to “Founder’s Syndrome,” where one individual’s outsized influence undermines board independence and long-term sustainability.
Practices That Safeguard Clarity
Even with sound governing documents, uncertainty can arise if governance practices are neglected. Regular practice, such as monitoring conflicts of interest, filing annual reports, keeping accurate minutes, and adopting dispute-resolution policies, serve as critical safeguards against ambiguity over who the Board is, ensuring that leadership remains clear, legitimate, and accountable.
1. Conflicts of Interest. Directors must be free to exercise independent judgment on behalf of the organization. Potential conflicts, such as serving on the board of a major partner, holding a financial interest in a contractor, or being related to another director, should be disclosed and evaluated. A strong conflict of interest policy, with annual disclosure requirements, helps the Board identify and manage both actual and potential conflicts without disqualifying otherwise well suited individuals for a role. Such policies are also important in light of the Internal Revenue Code § 4958 “intermediate sanctions” rules, which require that decisions involving potential excess benefit transactions be approved by disinterested directors following appropriate disclosure and documentation.
2. Corporate Annual Reports. Most states require nonprofits to file corporate annual reports with the Secretary of State or corresponding state agency. These filings are both a legal obligation and a safeguard, as they formally report the organization’s leaders as of a point in time and maintain the corporation’s good standing as an active business entity within its state of incorporation. Further annual reporting may be necessary for operations in other states too.
3. Minutes and Records. Accurate minutes should be kept for every Board meeting and reviewed and approved at the next meeting. Minutes should be contemporaneously prepared so that they accurately reflect actions taken. Recording meetings, with appropriate consent, or using an AI transcription tool may prove helpful for minute development, provided that the transcript is converted into formal minutes and then deleted or otherwise destroyed in accordance with the organization’s records retention policy. Special care should be taken to document all actions relating to director appointment, such as elections, vacancies, removals, and resignations, so there is never doubt about who serves on the Board.
4. Dispute Resolution Policy. Disagreements are inevitable in any organization, even those with strong governance. A written dispute resolution policy for directors, officers, and key employees provides a structured process for resolving conflicts internally before they escalate. While not every dispute can be settled this way, having such a framework in place greatly increases the likelihood of timely and effective resolution, and can reduce the need for costly litigation. This guidance is particularly applicable for religious organizations, for which the church autonomy doctrine may apply to bar litigation.
Together, strong governing documents and consistent governance practices provide necessary clarity about the Board’s composition. By defining roles and authority in the Articles of Incorporation and Bylaws, and by reinforcing those provisions through careful compliance, recordkeeping, and conflict management, nonprofits protect themselves from the uncertainty that fuels disputes.
When It’s Still Not Clear: Navigating Board of Directors Disputes
When disputes arise, a nonprofit’s response is crucial, if not existential. In many cases, it is advisable to involve legal counsel early, both to advise on the most appropriate resolution strategy and to ensure compliance with fiduciary and statutory obligations throughout the process. Nonprofits must navigate disputes deliberately and effectively, with a clear understanding of the paths available, to reach a successful resolution.
Follow organizational procedures
The first step in resolving a dispute is to turn to the organization’s own rules. Many conflicts can be resolved internally if the bylaws, historical minutes, and governing documents clearly establish the current make-up of the Board and the authority of the nonprofit’s directors, officers, and key employees, A well-drafted dispute resolution policy is especially valuable here, as it provides a framework for addressing disagreements before outside intervention is necessary. Legal counsel can assist in reviewing these documents to confirm their applicability and guide the Board in applying them consistently. But note that confusion may develop about an attorney’s role, and thus careful attention should be paid to whether legal counsel represents the organization (through its Board) or individual leaders along with related communications.
Seek mediation
If internal mechanisms do not resolve the matter, the next step may be to engage an outside mediator or conflict-resolution professional, particularly if such step is prescribed by an organization’s dispute resolution policy Neutral third parties can facilitate dialogue, help clarify positions, and create space for compromise. Mediation often preserves relationships and avoids the cost and disruption of litigation. Counsel can advise in advance on the suitability of mediation for the specific dispute, assist in selecting an appropriate mediator, and provide guidance during the process to ensure that any resolution reached is legally sound.
Litigation as a Last Resort
When all else fails, litigation may be the only way to resolve a deeply entrenched conflict. Because lawsuits are slow, costly, and disruptive, they should never be undertaken lightly. Litigation can also be incredibly draining on leaders’ time and potentially damaging to an organization’s reputation. Directors thus should carefully weigh the reputational, financial, and operational impacts before proceeding. If litigation is unavoidable, counsel’s role becomes central: identifying appropriate claims, crafting the requested relief, and managing communications with employees, donors, and the public. While litigation may sometimes be necessary to secure clarity and restore the Board’s authority, it should always remain the last option after other strategies have been exhausted.
Conclusion
At its core, the question of “Who is the Board?” is not simply a matter of names on a roster but of governance integrity. Clear governing documents, consistent compliance practices, and disciplined approaches to conflict resolution are the safeguards that protect nonprofits from uncertainty, disputes, and costly litigation. While disagreements are inevitable, organizations that prepare in advance by defining authority, documenting decisions, and engaging counsel when appropriate are far more likely to preserve unity and legitimacy when challenges arise. Most importantly, clarity about the Board’s makeup allows nonprofits to stay focused on what matters most: advancing their mission, stewarding resources responsibly, and sustaining the trust of those they serve.
[1] See e.g., 805 ILCS 105/108.05.
[2] Even in states not requiring three directors such as Delaware or Arizona, a minimum of three directors is strongly recommended in most nonprofit contexts and is required for public charities described under Internal Revenue Code section 501(c)(3).
[3] 805 ILCS 105/108.10.
