LAWREVIEW
Considerations for Establishing
a Certification Board
This Law Review was written
by Susan Feingold Carlson and
edited by Jed Mandel, both of
whom are founding members
of Chicago Law Partners, LLC.
CLP serves as the Association
Forum’s general counsel.
Q: What issues should an association
consider before establishing a certification board?
A: Before an association establishes a
certification board, it should understand
the difference between its own role and
that of the certification board in the certification process. It also should recognize
the potential risks to the association in
setting up a board.
Certification boards are formed for
many reasons. Members of an industry or
profession may wish to provide a means
to identify competent professionals; confirm that facilities meet the standards
required to manufacture quality products; or verify that sample products meet
established performance tests. A certification board also can create additional
visibility for a trade or profession as well
as generate income and prestige.
By its nature, a certification board that
undertakes to measure individuals, facilities, or products against minimum standards has the effect of excluding certain
competitors from the marketplace. An
association, however, must represent and
promote an entire industry or profession,
and it has an incentive to design standards that include or favor its members.
Given the differing roles of an association
and a certification board, antitrust law
principles suggest that a certifying body
should be independent, particularly for
policy-making functions and individual
credentialing decisions, if it is to establish and administer a fair certification
program. Thus, while an association and
its members may participate in certification activities, particularly as a readily
available source of information concerning the industry or profession, the actual
evaluation and certification of individuals, facilities, and products should be
conducted by a certification board that is
autonomous with respect to substantive
certification issues.
To maintain that autonomy, the asso-
ciation and the certification board may,
but need not, be legally separate enti-
ties. Some associations create separately
incorporated certification boards with
which they maintain no formal relation-
ship. More often, associations establish
a separately incorporated certification
board, but preserve ties with the board
by retaining the authority under the
board’s bylaws to nominate or appoint
one or more members of its board of
directors. Other sponsoring associa-
tions elect to establish autonomous, but
not legally separate, certification com-
mittees within the framework of their
existing corporate organizations. Under
that arrangement, the association can
provide input regarding the appropriate
policies and procedures for operation of
the certification program, as long as the
ultimate authority regarding substantive
certification matters lies with the certi-
fication committee. Regarding adminis-
trative matters, separately incorporated
associations and certification boards may
enter into a written, arm's-length, service
agreement under which the association
provides administrative services to the
certification board. An association main-
taining a certification committee can
effect a comparable arrangement through
written policy.
The answers provided here should not be construed as legal advice or a legal opinion. Consult a
lawyer concerning your specific situation or legal
questions.
