I learned a lot from my many years in the Boy Scouts of America (BSA), and I’m still learning from the organization. This summer, for example, I learned that, as a non-profit, the BSA wasn’t paying much attention to good governance practices when it reaffirmed its policy against admitting gay leaders to its ranks.
You probably recall the national attention given to the BSA when it developed its own version of “don’t ask, don’t tell” for scout leaders. It led to a 2000 Supreme Court ruling in which the court found that, as a private organization, the BSA could discriminate against homosexuals based on its First Amendment right of free association. Since then, pressure has built within the organization to reconsider the discriminatory hiring policy. It culminated this summer when, after a two-year evaluation, the BSA announced it would retain its anti-gay policy.
As a lawyer, I couldn’t help but notice that the organization’s governing body, the BSA National Executive Board, had no apparent role in this decision. Instead, according to statements released by the BSA, the BSA’s top executive and national president commissioned a “special committee” of 11 unnamed volunteers who unanimously recommended to the executive committee that the membership policy remain unchanged. The executive committee accepted the recommendation. And, that was that.
Ordinarily, an executive committee can act on behalf of the full board between meetings, and that makes sense if routine decisions have to be made quickly, especially if full board meetings are only occasional and gathering the board is inconvenient or expensive. But here, the issue was hardly routine, and the BSA’s board regularly meets at least three times a year, according to its own website. It seemed odd to me that the outcome of a two-year study on an issue watched closely, both within and outside of the organization, would not be addressed by the full board, the next meeting of which would not be far off.
My eyebrows arched when I learned that shortly after the policy announcement, two members of the National Executive Board came out publicly against it. One of them, Ernst & Young CEO James Turley, had been on record as against the policy and vowed to seek a reversal of it. The other, AT&T Inc. CEO Randall Stephenson, also seeks to make the BSA an inclusive organization and will become the Board’s president in 2014.
Isn’t that odd?
Imagine if the BSA had allowed its full board to discuss the membership policy recommendation as an agenda item of a regularly scheduled face-to-face meeting. That is a good governance practice and what the law requires in almost all states. Certainly Turley and future Board President Stephenson would have spoken against keeping the current rules. Maybe there were others who agreed with them. Might those views have swayed others? We will never know because this issue, an issue that could affect the future viability of the organization, was never brought before its governing body. There was never a vote that would reveal the degree of support or nonsupport for the organization’s membership policy. Indeed, the only thing BSA members or the public know about the decision-making process is that
11 unknown members of a “special committee” agreed unanimously to maintain the anti-gay employment policy, and the body empowered to run the organization had no say in the matter. Moreover, to the extent any Executive Board member was actually on the record, it was public opposition.
Is that any way to run an organization? No, of course not. The BSA is the second major non-profit this year to bypass its governing body on a major decision—the first was the University of Virginia (UVA). The outcome for UVA was a disaster. The BSA should be prepared for a similar fate.
Bruce D. Collins is corporate vice president and general counsel of C-SPAN, based in Washington, D.C. Email him at firstname.lastname@example.org.