Our nonprofit board voted to remove its secretary for breach of duty (e.g., poor record keeping, unexcused absences at board meetings, missed filing deadlines, etc.). The individual in question reacted negatively and refuses to return the organization’s corporate records and online account passwords for the next secretary to use. How can (should) the board of directors respond?

That is a very unfortunate situation. Legally speaking, the issues are not complicated. The former secretary has no right to retain the records and other property belonging to the organization.

If the board’s efforts to encourage their former colleague to safely and promptly return the organization’s property are not successful, then an appropriate next step would be to ask the organization’s lawyer to send a demand letter. If that fails, the organization could sue in civil court to compel the former secretary to return the organization’s property or, in some cases, the organization could file a criminal complaint with the local Commonwealth Attorney’s Office, but either approach will necessarily take a long time to resolve and be a distraction to those involved. Keep in mind things could quickly get expensive; these expenses would not be covered by insurance, and depending on the organization’s governing documents, the organization might even have to advance legal defense fees to the former secretary throughout the process. Put another way, the legal system does not provide a very efficient mechanism to resolve situations like this.

A proactive and professional communication strategy might be the most effective approach. Organize a small delegation of officers and directors go to visit the former secretary. Advise the secretary that if the items are not returned immediately you will advise all of the other members of the organization what he or she has done. And if the prospect of public shame does not resolve the situation, then explain that you will have to report the “theft” to law enforcement. A quick visit from a police officer might be more influential than anything you could say or do.

Situations like this force nonprofit leaders to evaluate what back-up systems they have in place to reduce the risk of harm to the organization when situations like this arise. Without a system to protect an organization’s books, records, and other property, the organization can suffer significant harm with no quick and easy remedy.