ABSTRACT :: Scandals involving nonprofit boards and conflicts of interest continue to receive considerable public attention. Earlier this year, for example, musician Wyclef Jean’s Yele Haiti charity became the target of intense criticism after the charity disclosed that it had regularly transacted business with Jean and entities controlled by Jean and other directors. Although scandals caused by self-dealing undermine public confidence in the charitable sector, they continue to erupt. Why do charitable boards sanction transactions with insiders?
This Article argues that much of the blame lies with the law itself. Because fiduciary duty law is currently structured as a set of fuzzy standards that focus on outcome rather than procedure, it facilitates groupthink. Groupthink occurs when directors place allegiance to fellow board members ahead of the nonprofit’s best interests, and it can undermine social norms that facilitate sound governance procedures. Groupthink blinds directors to conflicts of interest and may also induce directors to refrain from adequately monitoring ongoing business relationships with board members. When groupthink occurs, boards can convince themselves that their conduct falls within the law’s murky limits. As a result, charitable assets are diverted from the charities’ intended beneficiaries and into directors’ pockets.
Social norms against self-dealing are the primary tool for combating harmful groupthink. The law should be reformulated to support and reinforce fiduciary duties as social norms. Restructuring laws against self-dealing as a set of clear rules would give needed direction to confused boards and would entrench social norms against self-dealing. A flat prohibition on self-dealing and conflict of interest transactions would be the most effective way to ensure that fiduciaries place the best interests of the nonprofit ahead of self-interest. Short of that, clear directives requiring disclosure of conflicts, investigation of alternatives, and proof that inside transactions are clearly below market would do much to counter the damaging impact of groupthink.
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December 2013, Vol. 65, No. 6
Adam Mossoff, The Trespass Fallacy in Patent Law
Alan White & Carolina Reid (Essay), Saving Homes? Bankruptcies and Loan Modifications in the Foreclosure Crisis
Lee Harris, CEO Retention
Jennifer Koh, Rethinking Removability
Katrina Wyman & Nicolas Williams, Migrating Boundaries