How many committee members does it take to ignore a constitution?
In this help sheet series, Our Community’s resident agony uncle, Chris Borthwick, offers answers to frequently asked questions about issues not-for-profits are facing.
Dear Agony Uncle,
Please help! My organisation’s constitution says we are to have 10 committee members. I obtained the records and in the last six years they have had 10 committee members only ONCE! They've had three years of eight members, and two years of nine members. Before that time, I don't know.
I initiated a motion of no confidence in the three “presidents” this month. (We have one president and two vice presidents).
The other committee members voted against it! (Two didn't vote and five did). I was the only one who voted in favour, and of course I was the messenger.
I cannot believe this!
Anyhow, I have reported both breaches to the ACNC and am proposing at the upcoming AGM in November that the three presidents be disqualified from nomination for executive positions. I am also proposing a change to the constitution to have only one vice president. With the low committee member numbers, the “presidents” have been able to have too much power.
What do you reckon? Am I missing something about this? I think it's really serious and wonder how much further ahead the organisation would be if the “asleep-heads” who have been so long in those positions had been doing their duty!
Another issue is that in my time at the NFP they have made no effort to get more committee members!
Scandalised, NSW
Agony Uncle's answer
I’ll take it that you’re correct and your constitution says there must be 10 members, and there now aren’t.
The question then becomes “Given that there’s a constitutional breach, what follows from this?”
The answer, to be blunt, is “nothing”. Specifically, the ACNC couldn’t care less. Constitutional issues count as internal disputes, unless they pose a “serious risk to public trust and confidence in the sector” and they “relate to a charity’s compliance with requirements of the ACNC Act”, which I don’t think your problem does.
One extra problem you have is that if the rule is exactly as you suggest (what are its actual terms?), then it’s a stupid rule and you should change it, if only because it plunges you into a breach every time a committee member resigns for whatever reason. It can only exist at all after a first resignation if it’s taken to be a goal rather than an unbreakable commitment, and if it’s a goal then the committee will be given considerable leeway to decide how to resolve it, which can certainly cover taking its own sweet time fixing it.
What I would suggest is that you change the constitution to say something like “up to 10”. You will presumably object that you think this will result in the number of members dropping even further, which will presumably give “the presidents” even more power.
Okay, we then move to a different question: are you taking these measures because you’re offended at the idea of any breaches of your beloved constitution, or because you’ve got disagreements on other issues with the “presidents”? That is to say, what are you actually trying to make happen? What do you suppose would be different if there had always been 10 members, and why would you prefer this outcome?
In either case, taking the matter to an annual general meeting is probably the right thing to do, but when you make your case to the members who turn up at the AGM it could well make a difference whether you urge members to throw the rascals out because (a) they opposed the policies you favour or (b) they made an error on a technical point of constitutional interpretation.
Still, that’s up to you. I have to say, though, that a 5–1 loss on the vote doesn’t suggest that removing three presidents would give you a voting majority, which is just about the only thing that counts, unless it’s coupled with a push to elect people on your ticket. Are you doing that?
I can’t say I see the point of cutting the number of vice presidents. Do the VPs have powers that ordinary committee members don’t? Why does it matter whether they’re VPs or ordinary members? They have the same number of votes either way, surely.
Oh, and a vote of no confidence is not quite the same as a resolution declaring some or all positions on a committee vacant. It’s really only courtesy, custom and common sense that cause office-bearers to resign after a vote of no confidence. If they choose not to resign, then they stay in office.
My basic advice to you is to find a way to win the votes in the committee. Anything that doesn’t unambiguously support that aim isn’t worth wasting your time on.
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