Best Practices to Maintain an Enforceable Code of Conduct

franco-enforceable code of ethics April 25, 2023 By: Mark Franco

A code of conduct outlines an organization’s mission, values, and principles, and links them with standards of professional conduct. Here’s an overview of key issues to consider when implementing an enforceable code of conduct for your association.

Last year, ASAE added diversity, equity, and inclusion components to its Standards of Conduct. ASAE promotes these Standards of Conduct because more than 287 million people around the globe look to associations for their vision, values, and effectiveness.

However, apart from individuals who have earned a CAE, the ASAE Standards of Conduct remain primarily aspirational. While the conduct is desired, it is not required for membership. But ethical conduct is mandatory and enforceable for those with a CAE credential since a code of conduct is critical to the credential and required under third-party accreditation standards.

Many associations adopt an aspirational code of conduct or ethics because they allow for more flexibility and freedom in their administration. However, other associations find enforceable codes of conduct are necessary to protect the public and the reputation of the profession, particularly in industries like healthcare or finance where professional conduct can affect public safety and well-being.

While necessary, organizations that adopt an enforceable code must understand and pay attention to very specific legal requirements. Here’s a closer look at what those entail.

Enforceable Codes 101

At their foundation, enforceable professional codes of conduct or ethics must be fair and reasonable. They should relate to the organization’s mission and should be no more stringent than necessary.

Any enforceable code must maintain a balance between specificity, to provide reasonable notice of what may be prohibited conduct, and generality, to allow for flexibility. An enforceable code should not unreasonably restrict or restrain trade, unfairly diminish a professional’s ability to practice or engage in business, or otherwise run afoul of or violate antitrust laws.

Associations can generally adopt enforceable codes of conduct or practice that prohibit practices, policies, and conduct that are commonly considered to be illegal, largely improper, or unacceptable.

It is generally good practice that regardless of whether aspirational or enforceable, an association’s code of conduct or ethics should ensure that it is administered fairly and equally to all those subject to it.

Enforceable codes can usually prohibit unprofessional conduct, such as practicing under the influence of alcohol or drugs. They can also prohibit criminal behavior and other general crimes of moral depravity. Most importantly, they can generally prohibit conduct that would be considered violations of professional practice.

However, enforceable codes cannot be used to “blackball,” inappropriately exclude, or subject members to unreasonable restrictions disguised as “unethical” behavior or professional “misconduct.”

To be fair and reasonable, enforceable codes of conduct or ethics must be both substantively and procedurally fair, providing “fundamental fairness” to those that are subject to it. An enforceable code is substantively fair if it is not developed on or applied on an arbitrary basis and is “rationally related” to a “legitimate concern” of the association. For example, it likely would not be substantively fair for an association’s enforceable code to make owning a red car a violation.

Handling a Violation

In the event of an alleged violation of an enforceable code of conduct or ethics, procedural fairness requires that an association provide advance notice and an opportunity for the individual to explain the situation. Any findings of a violation must be based on substantial evidence. 

An association must also provide a reasonable opportunity to appeal any adverse decision to a separate decision-maker who can handle any due process (fairness) challenges or concerns. This includes the ability to determine whether the association followed its own rules in enforcing the code of conduct or ethics. But fairness does not require rigid adherence to procedures so long as the results were generally consistent with fairness requirements. 

When adopting an enforceable code of conduct or ethics, legal considerations require that written notice must be provided to potential violators that clearly presents any alleged violation and identifies the specific conduct that may be a violation. Determinations of violations must be made by impartial decision-makers such as peers in the profession. An opportunity for appeal must be allowed.

It is generally good practice that regardless of whether aspirational or enforceable, an association’s code of conduct or ethics should ensure that it is administered fairly and equally to all those subject to it. 

Mark Franco

Mark Franco, Esq., ICE-CCP, is counsel at Whiteford, Taylor and Preston, LLP.