Try preventive measures first: a game plan for boards that find themselves with one or more directors who are 'pains in the neck'.

• Author: Yoder, Stephen A.
• Position: BOARD DYNAMICS

DEALING WITH A DISRUPTIVE DIRECTOR is not unlike dealing with a chronically aching neck that disrupts one's life: both preventive and ameliorative measures must be taken to handle the "pain in the neck."

Preventive Measures

Selection: It goes without saying that one way to avoid a disruptive director is not to invite him or her to serve on the board in the first place. In most cases, whatever bad behavior is now being played out on your board by a particular individual has already surfaced somewhere else, and someone knows about it.

I recall one time the board of a publicly traded company was considering adding a particular individual to its board. No search firm was involved. The corporate secretary was assigned to do some due diligence. In one due diligence call, an existing director told the corporate secretary that he had heard that the candidate was prone to outbursts during meetings of another high-profile governing body. The corporate secretary and board chair discounted that piece of information because there were other reasons that the company really wanted to bring this candidate on to the board. It turns out he was equally susceptible to outbursts on the new board, a trait not at all shared by other directors.

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The lesson learned here is to seek out and then listen to those whose judgment you trust on interpersonal relationships, particularly those who are already on the board. Perhaps a search firm would have uncovered this trait, but I doubt it.

Term Limits: Term limits can serve as probation periods for new directors and to provide escape routes from having to cope with directors who have become disruptive after a period of "normal" behavior. Your company bylaws or other governing document, such as a board or committee resolution, might expressly provide that the director's first term is automatically the only term unless the chair or his designee, such as the nominating committee, recommends otherwise (check with your SEC disclosure counsel as to whether this must be disclosed if you are a public company). If your company has a classified board, you might place a new director in the class with the shortest time remaining.

Another way both to reduce expectations that board service is forever as well as to part ways with a problem director is to include a requirement for directors to tender their resignations upon any change in professional positions. Such changes might not necessarily coincide with the...