The phrase manner of acting is a legal term, referring to the way a board of directors exercises its oversight of a committee. A board of directors has three options for such oversight: receiving a report without a vote of the board of directors, accepting a report with a vote of the board of directors, or approving a report, again with a vote of the board of directors. All three are legal in New York State. Why is this important?
Our organization has historically functioned as if the Executive Council and the Board on Professional Standards (BOPS) were two nearly equal governing bodies. We have known that under New York State not-for-profit law only one board of directors can exist and that the board of directors cannot delegate its responsibility of oversight. The Executive Council, our board of directors, is legally responsible for all activities of the Association including those of the BOPS. The Association would be legally liable if any part of the Association, like the BOPS, were practicing some form of illegal discrimination. It follows that the board of directors needs to know what the BOPS is doing, and how the BOPS is doing it.
Victoria Bjorklund, our expert attorney for New York not-for-profit corporate law, has made it clear that in her view the Board on Professional Standards is a committee of the corporation. After receiving the report of the Compliance Committee's recent consultation with Bjorklund (the Compliance Committee is a committee of the Executive Council), I asked our president, Lynne Moritz, for a consultation with Bjorklund. The question I had for Bjorklund was how must the board of directors exercise its oversight? In legal terms, what must our board of directors' manner of acting be? Our president granted my request, and joined me in a consultation with Bjorklund and our executive director, Dean Stein, on January 10, 2007. The consultation occurred in the week prior to our recent national meeting. Bjorklund explained the three ways our manner of acting could be legal in New York State. This was big news to me.
Moritz and I knew that our efforts, along with those of Prudy Gourguechon and Jon Meyer embodied in the Renew Plan, might fail. Having been under the impression that our manner of acting was out of compliance with New York law, I was relieved to learn from Bjorklund that our board of directors had three options (outlined in the first paragraph). This meant that the Association has been in compliance as regards our manner of acting all along. The Executive Council receives a summary (report) of the actions of the Board on Professional Standards at every meeting. Receiving a report is not a passive process. The Executive Council has an obligation to be active in its reception of the report and can ask for clarifications, provide feedback, and make suggestions based on the report. Active reception of the summary (report) of the Board on Professional Standards and its reciprocal—serious consideration of the feedback and suggestions provided by the board of directors by the BOPS—is very much within the spirit of the Education and Membership Agreement of 2001, which is the framework of our current bylaws.
The BOPS must act in a manner worthy of confidence. It must listen to the feedback and suggestions of the board of directors and take notice of the will of the membership. If the Executive Council continues to express confidence in the BOPS through its manner of acting and the BOPS remains worthy of that confidence, we might have the peace that we need to move forward.
For 61 years, the Association has granted the Board on Professional Standards considerable autonomy in exercising its bylaw mandated functions, as it does the editorial board of JAPA and our Program Committee. None of these components of the Association would function well with the board of directors second-guessing its decisions. The board of directors has the right to do so, but in exercising its responsibilities it should only act to override the BOPS, the JAPA editorial board, or the Program Committee in a matter that would involve egregious irresponsibility, i.e., discriminating based on gender, religion, race, and such issues. Educational standard setting and credentialing decisions must not be micro-managed. These activities need a degree of autonomy for their integrity. The confidence the Association has had in the BOPS has been expressed through the Executive Council's manner of acting. As I write this, there are demands on our Internet list-servs for more active oversight of the BOPS by the Executive Council. Members should understand that these calls for greater oversight are about the politics of the Association, not the law in New York State or even “best” corporate practice.
Eric J. Nuetzel, M.D., is chair of the Board on Professional Standards.
Debates over our educational standards, especially our bylaw mandated certification requirement for training and supervising psychoanalyst appointments, divide the Association. The Board on Professional Standards has been working very hard to insure that our certification exam is administered fairly and even-handedly. The Certification Advisory Research and Development Committee (CARD), along with the BOPS co-science advisors and the Committee on Research Education (CORE), have been assessing the reliability (fairness) of the certification exam. This group will also attempt to assess the validity of the exam, once reliability has been established for all aspects of the exam. Where the exam falls short, it will be modified. Innovative ways to make the certification process more acceptable to our membership are being contemplated. Despite these efforts, the link between certification and training and supervising psychoanalyst status will likely remain a source of conflict within the Association.
Our best hope is for a period of peace while we search for the best solutions and build consensus. The Board on Professional Standards is a committee of the corporation. The Executive Council is the board of directors with the responsibility of oversight. My hope is that the Executive Council will continue to act in the same manner as it always has in relation to the BOPS. I like the phrase manner of acting because it captures the heart of the matter. No group trying to do serious work with integrity can function effectively while being micro-managed. The BOPS must act in a manner worthy of confidence. It must listen to the feedback and suggestions of the board of directors and take notice of the will of the membership. If the Executive Council continues to express confidence in the BOPS through its manner of acting and the BOPS remains worthy of that confidence, we might have the peace that we need to move forward. This arrangement will not satisfy everyone, but for now it is the best that we can do. How we treat each other, individually and collectively, is the most important issue that we face.