Nov. 8: Open Letter for the upcoming Special AGM

At the Board of Directors of the Kanesatake Health Center Inc.’s AGM of October 26, 2010, many of us questioned the dominant presence of band councillors on the Health Center’s Board. Paul Nicholas responded that he and other councilors “had no choice” but to fill two of the designated “permanent” empty seats with “interim” appointments. That’s not quite accurate.

The band council may fill a vacant “permanent” seat with a councillor – but it should appoint someone from the community:

• to maintain balance on the Board between the band council and community interests;
• to avoid the perception, if not reality, of conflict of interest by councillors on the Board;
• to dispel fears that “interim” appointments of councillors invites abuse of that position.

According to people who were there, Kanesatà:ke’s Health Centre was created by incorporation because people wanted their health center and board of directors to operate at arms-length from the band council to better serve the community as a whole. They came to this conclusion after decades of corrupt or inept band governance marked by closed council meetings, BCRs passed in secret, discrimination against individuals or entire families, favouritism, nepotism, lack of accountability, financial mismanagement, abuse of authority and conflict of interest. People said they wanted their health center set up in such as way as to make it more difficult for any band council to interfere. 

The establishment of the Health Center was intended to foster ownership by members of the community over their own health services regardless of political affiliation, family ties or religion. The community wanted an independent board of directors that would promote openness, fairness, accountability, and equitable access to health services for all. The band council agreed and promised Kanehsatà:ke that the new health center would be theirs and would serve them.

A steering committee considered designs for the health center’s board of directors. Not everybody agreed but apparently most people wanted to adopt a few well-known principles of responsible board governance. Here’s one example that, although American, is similar to those that guide most not-for-profit corporations in Canada.

A board of directors also has certain legal obligations, known as duties. While the details may vary from state to state, here are some common legal responsibilities for members of non-profit boards to:

• Take reasonable care when making decisions for the organization (called “duty of care”)
• Act in the best interest of the organization (called “duty of loyalty”)
• Act in accordance with the organization’s mission (called “duty of obedience”)
• Stand aside when there is a conflict of interest (called “recusal”)

While there a board has many responsibilities, there are also things it should avoid. Basically, board members should avoid being over- or under-involved. More specifically, the board of directors should not:

• Concern itself with the day-to-day management of the organization. That is the executive director’s job.
• Rubber stamp decisions.

While the board should take the recommendations of the organization’s director, staff, and members into consideration, the board needs to be an independent decision-making body.

Read more at Suite101: Non-profit Board Responsibilities: Overview of Non-profit Board Governance http://www.suite101.com/content/nonprofit-board-responsibilities-a14806#ixzz14F2rmaUX

Against the steering committee’s better judgment, however, Health Canada imposed its preferred board design on the community. Health Canada insisted that the band council have two (2) “permanent” seats on the Board for its “health” and “assistant health” portfolio holders. 

Federal officials also insisted that (3) more “permanent” seats go to the Directors of Social Services, Social Assistance, and Riverside Elder’s Home to ensure stability with existing services. 

Only two (2) seats would go to people from the community, both defined as “professional” and “retired professional”. There was trouble with this design right from the start. 

Some Board members brought their competing interests, job titles and personal squabbles to the table. They couldn’t – or didn’t know how – to leave behind their outside jobs and assume the legal responsibilities on the board of directors of the Health Center. This created tension and in-fighting. The Directors of Social Services and Social Assistance resigned, as did the two community members on the Board. By the end of last year, there were only three sitting members left – not enough for quorum. The Health Center could not continue operating for very long without at least four voting directors.

The band council issued a BCR appointing Paul Nicholas (chief councillor) and Carrie Bisson (Director of Education) as “interim” Board members to replace the Directors of Social Services and Social Assistance. The band council didn’t consult the Health Center or the community. It didn’t need to. Band councillors held the balance of voting power on the Board before, they dominated the Board after these appointments. If you weren’t a band councillor then you were their paid employees.

The Board scheduled an Annual General Meeting for November 2009, then cancelled it over concerns of a flu pandemic. It could have held an AGM anytime after March 2010, after the flu alert. The Board didn’t need to wait a year – until October 2010 – to fill vacant “community” seats, submit reports or approve audits and financial statements. In fact, it was illegal to wait so long. This delay, however, made possible something that has yet to be explained or justified to the community.

Kanesatake for Youth of Today (KYOT) is aimed at teens up to 17 years of age, although the 18-plus Youth Council also uses KYOT facilities for after-hours activities. KYOT should be funded by the band council but had been administered by the Health Center. At some point, KYOT asked the Health Center for additional financial support for some activities and services such as field trips, transportation, some maintenance and materials. 

Increasingly, the band council defaulted on its financial contribution but expected the Health Center to pick up the slack. Even after the band council took full control of KYOT this past summer, it still expected the Health Center to use health funds to cover the cost of KYOT. This led to speculation that the band council used KYOT money to pay down its debt, and the takeover was an attempt to cover its tracks.

Councillors involved in the vote to takeover KYOT may not have told other band councillors what they were doing. It’s possible they didn’t even tell other councillors on the Health Center’s board of directors until after the KYOT takeover. The only thing known with certainty is that, once more, neither the community nor the Health Center staff was consulted. 

Directors on boards have a legal obligation to protect the best interests (“duty of loyalty”) of that organization. Band councillors should not be allowed to wear two hats at the same time; acting as both band councillor and director on the Health Center Board at once. It invites abuse of the position and increases potential conflicts of interest. Band council may not understand this basic principle for good board governance. For instance, even at the October 26 AGM, some band councillors not only identified themselves as councillors, but acted as though they were there to represent the band council – not the Board.

These and other incidents show that band councillors either don’t know or don’t care how boards of directors should operate. It shows the need for board training, so everyone on the board understands their roles and legal obligations. It also underlines the need to restructure the Board to install safeguards against abuse of board positions and insulate the Health Center from undue influence by the band council or any other group. How can Health Center managers and staff carry out their duties without fear or favour when most of their board of directors are band councillors or senior managers taking orders from the band council? 

The last resignation from the Board took place more than a year ago. The “interim” appointments of Mr. Nicholas and Ms. Bisson should have expired as of the October 26 AGM. They’ve given no indication that they intend to leave the Board. In fact, there are whispers that these “interim” appointments will become permanent – without community consultation or consent. 

There needs to be limits placed on the length of “interim” appointments so they don’t continue for months, a year or longer. Vacant positions on the Board, including “permanent seats”, must be filled by community members and confirmed by the community at a general meeting of the Board. Band councillors should not appoint themselves to the Health Center Board simply because they’re band councillors without community knowledge or consent.

The Board must be restructured so it can appoint people who bring certain talents, skills and experience to support the Health Center. These qualities may include expertise in fundraising, policy development, government, board governance; or experience in areas of health, health policy, health research, etc. We have kanehsatà:keronon in professions such as law, computer programming, education, physical therapy, and more. Yet the band council ignores these people to put themselves onto the Health Center’s Board even if they have none of the above skills or experience in any area of health. This doesn’t make sense.

This should not exclude any band councillor from sitting on the Board. It must be recognized that there are band councillors who work hard to advocate for improved health in the community and improve conditions that affect health. But they must satisfy concerns about qualifications or commitment by the community before filling a board position just like community members. 

Regardless, community interests must be safeguarded by ensuring a dominant presence of members of Kanehsatà:ke on the Health Center Board at all times. We need more – not less – involvement by members of the community to control and run its own health system. 

Barbara Simon, a band councilor and sitting Director on the Health Center Board, offered one suggestion during the October 26 AGM: “We (band councillors) should not be on the (Health Center) Board except as an ‘ex-officio’ member. We could take part in discussions but we wouldn’t be allowed to vote.” This sounds like a sensible suggestion; one that must be discussed further at the upcoming Special AGM.

Perhaps the best reason to restructure the Board is this: The present system doesn’t work! Apparently, there’s been work done already on the issue of Board restructuring. We should distribute that document to community members to guide further discussion. There must be enough time at the upcoming Special AGM to elect new directors but also to begin serious discussions on restructuring the Board. I formally request a Saturday afternoon to begin this process. It must be emphasized that Board reform is a process and will take more than one meeting. 

Here are some proposed items for the Agenda of this upcoming Special AGM:

1. Elections of vacant membership positions;
2. Identification of community members to fill “interim” positions on the Board;
3. Discussion on implications of and issues raised by the KYOT takeover;
4. Discussion on restructuring the Board of Directors;
5. Amendments to Board policy to place reasonable time limits upon “interim” appointments.

This Open Letter will be delivered to the Board of Directors of the Kanesatake Health Center Inc. It will also be made available online via various social networking platforms.

Regards: