Association Codes of Ethics and Conduct: Minimizing the Liability - - PowerPoint PPT Presentation

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Association Codes of Ethics and Conduct: Minimizing the Liability - - PowerPoint PPT Presentation

Feb 15, 2024 110 likes •229 views

Association Codes of Ethics and Conduct: Minimizing the Liability Risks George E. Constantine, III, Esq. Venable, LLP Washington, DC 202-344-4790 geconstantine@Venable.com June 2015 George E. Constantine, III, Esq. Counsel to tax-exempt

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George E. Constantine, III, Esq. Venable, LLP Washington, DC 202-344-4790 geconstantine@Venable.com June 2015

Association Codes of Ethics and Conduct: Minimizing the Liability Risks

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Presentation August 15, 2014

George E. Constantine, III, Esq.

Counsel to tax-exempt trade associations, professional societies Former Staff Counsel for the American Society of Association Executives Concentrates practice on tax, contracts, corporate governance and other issues affecting tax-exempt, nonprofit corporations Provides ongoing ethics counsel to other membership organizations

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Legal Aspects

Associations Generally

Tax-exempt status Governing Documents

  • Articles of Incorporation
  • Bylaws
  • Board Policies and Procedures

Governance Oversight

  • Board/Executive Committee
  • Ethics Committee
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Legal Aspects

Code of Ethics

Compulsory vs. Aspirational Due Process Antitrust Defamation Endorsement

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Due Process

Fair process required—state-based common law issue Generally courts will not intervene in self-regulatory activity Look to value of item being denied or revoked Conflict of interest processes

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Due Process

Not as involved as a civil or criminal process—

Notice Opportunity to respond Access to evidence Appeal optional

In general, protection against arbitrary judgment

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Antitrust

Regulating member conduct can give rise to antitrust risk—concerted refusal to deal Greater risk when item being denied is economically valuable Even when harm is great, also must show deficiency in the code itself (avoid subjectivity, price-related provisions)

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Defamation

False statement that is published and that causes harm Qualified privilege for ethical/conduct proceedings Confidentiality nonetheless very important

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Endorsement

Not a high risk Could have third-party sue organization, saying it relied on organization’s issuance of a certificate when deciding whether to hire someone Generally no duty for the association to protect end users, but not all courts agree

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Questions?

Questions?

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Contact Information

George E. Constantine, III Partner Venable LLP 575 7th Street, NW Washington, DC 20004-1601 Phone: 202-344-4790 Fax: 202-344-8300 Email: geconstantine@Venable.com