Traditionally, self-regulating professions have relied on a closed network of professionals who, with their shared specialized knowledge and expertise, volunteer to govern their peers by setting appropriate qualifications for entry, providing relevant standards for practice, and investigating complaints and disciplining when appropriate. Practitioners may be motivated to volunteer for governance positions as a form of contributing to the profession and ensuring the profession continues to fulfill these regulatory actions.
But in the last few years, failures in self-regulation, calls for more oversight by external parties, and changing social principles around equity, diversity, and inclusion have led to questions about current governance structures that rely on volunteers and allow professionals to govern themselves.
Many regulators across different professions have underestimated the challenges and risks of relying on volunteers. For example, the Professional Standards Authority’s 2019 report on the regulatory performance of Professional Engineers Ontario, mentioned that “volunteerism is a strong theme in PEO’s vision of itself” and that PEO is proud of the volume and commitment of its volunteers, who help deliver the regulator’s services. Yet, the report noted that dependence on so many volunteers with different levels of expertise means the organization is “hindered, not helped, by its complicated, volunteer-led structure”. The volunteers “have significant control of PEO but are not held to account in the same way as professional staff” and they are “not appraised in relation to their performance.”
Volunteers in governance positions for self-regulated professions are required to make decisions, implement processes, and demonstrate ethical and upstanding conduct. In many regulating bodies, volunteers are elected to their positions without a deliberate process, they may not be required to go through a screening process, and they may not be required to attend comprehensive training. Yet, they are responsible for decisions that affect the operations and reputations of the professions.
Best practices in board governance are evolving and in March 2019, the United Kingdom’s Professional Standards Authority (PSA) published its report on “Good practice in making council appointments”. Trends include reducing board size, replacing elections with merit-based appointment processes that have more rigour, and introducing compensation for governance activities that reflects the importance and required skills for the role. The governance functions of engineering regulators are not that different from many other boards outside of regulation, and there are lessons to be learned from changes underway in the public, para-public, and private sectors.
“The hallmark of being an effective board member is not simply being a member of the profession; it is about finding the most qualified candidate for the role,” says Greg Cavouras, a lawyer at Sugden, McFee & Roos LLP who practises in administrative law and professional regulation. “This means finding individuals who truly understand the regulator’s mandate of public protection and are prepared to uphold this responsibility above all else. While there are many registrants who serve their regulators very capably as volunteers, the challenge for regulators today is to ensure that they have the most qualified people doing the job. This may require a careful review of the recruitment, selection, and assessment processes for these important positions. Holding a licence from the regulator should no longer be the primary criteria, since being a qualified engineer does not automatically make the same individual qualified to regulate the profession in the public interest.”
In many of its research reports and reviews of regulators, the PSA has called for more public representation on governing councils. For example, the PSA’s 2018 report on its review of the dentistry regulator in British Columbia sums it up by saying “Professional regulation needs to be shared between the profession and the public in the interests of society as a whole”. Since regulators are expected to govern in the public’s interest, it is important to have governance and decision-making functions from public representatives who are not also subject to regulation. Having a proportion of board roles designated for non-professional, public representation contributes to effective regulation. More public involvement contributes to higher public trust and helps respond to notions of self-interested governance.
Many regulators continue to hold elections for board positions. They have feared turning away the small number of interested candidates and removing registrants’ connections to the profession. Compared to the usual recruitment standards for hiring employees, governance volunteers for engineering regulators rarely undergo the same level of diligence in obtaining their positions. Adopting stricter diligence in recruitment, selection, and training programs can improve the quality of governance.
By focusing on competencies rather than registration status, regulators can open their pool of applicants and find those who will be best suited to fulfill their governance responsibilities. For example, the Saskatchewan Professional Teachers Regulatory Board is comprised of nine Directors. There are two public members appointed by the Lieutenant Governor in Council, and seven registered teachers who are appointed using a competency-based selection by external bodies, including the Ministry of Education, the Saskatchewan Teachers’ Federation, and the League of Educational Administrators, Directors, and Superintendents.
In many sectors, board work is a paid position with performance evaluation. Adding an element of compensation that goes beyond covering basic volunteer expenses can help attract candidates who otherwise may not be interested or who are unable to take time away from other commitments. Formal compensation and performance appraisals can help promote a sense of professionalism and makes it easier to hold board representatives accountable for their work.
As regulation continues to evolve, the role of governance and the effects of board representatives cannot be an afterthought. Engineering regulators can evaluate the roles and powers currently held by volunteers and apply a risk-based approach to their internal governance just as much as they apply it to governing practitioners. Engineering regulators can start by evaluating their board structures and consider shifting to a competency model that looks for the best qualified candidates to provide organizational direction and make decisions that fulfill the organization’s public protection mandate.
Cavouras, Greg, Graeme Keirstead, and Thomas Lutes. 2020. Able or just willing? A discussion of the evolving role of volunteers in professional regulation. Presented at the 2020 CNAR Conference.
Durcan, Rebecca. 2016. Screening Committee Members. SML-Law Grey Areas Newsletter.
Maciura, Julia. 2018. 92% (Should professional members of regulatory Boards / Councils be elected by the membership or should they be selected by a merit-based process?) SML-Law Grey Areas Newsletter.
Professional Standards Authority. 2018. An Inquiry into the performance of the College of Dental Surgeons of British Columbia and the Health Professions Act.
Professional Standards Authority. 2019. A review of the regulatory performance of Professional Engineers Ontario.
Professional Standards Authority. 2019. Good practice in making council appointments: Principles, guidance and the scrutiny process for regulators making appointments which are subject to section 25C scrutiny.
Saskatchewan self-regulating professions working group. Regulatory governance forum. November 2020. Slides available upon request.