In our unincorporated association, are our acting president’s actions out of order?

Borthwick Chris Jul2019lg

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,

I am a member of a small committee which has an executive to carry out our decisions. We have a situation where our acting president has exceeded the provisions of the constitution, which states they are to “control the business and affairs” of the committee. This by definition and intent limits such actions to the “day-to-day” administration, as I have confirmed with the person who originally wrote our constitution.

Our acting president discovered over a month ago that our unincorporated organisation was not adequately covered for a number of our activities. She withheld this information for a month, sent out no agenda, and then gave us the options of winding up our little fundraising committee or becoming incorporated. The committee had no opportunity to examine this state of affairs and was immediately required to pass a motion to prepare the rules for approval at the next meeting. As we had no notice of the issue and there was no formal vote in favour of incorporation, would I be correct in thinking that these actions are invalid? As it stands there should have been an extra proposal involving something nearer to an auspice arrangement under the organisation which benefits from our fundraising activities, and members are investigating this.

To my mind, she had an obligation to immediately inform the committee of this vital issue. Would it be in order for me as an ordinary member to move a vote of no confidence and request that all positions be declared vacant? We have not yet held our annual elections.

Agony Uncle's answer

I have good news and bad news.

First, the bad news. If you aren't incorporated now, it doesn't particularly matter what your constitution says. There's nobody to enforce it. You're under no regulator. The only authority here is the committee itself. I gather from what you say that the acting president sprang something on the committee without notice and the committee – did what? Did nothing? Agreed to consider the matter at a later meeting (which is much the same thing)?

In any case, the committee received the proposal and took no action critical of the acting president, which is close to approving their actions to date. Declaring their actions invalid makes no sense; they're over, and the matter is before the committee. If you want the committee to take a different path at its next meeting, you'll have to move a motion then.

The good news is that there's nothing stopping you doing that. It's a political matter, and depends only on the votes of committee members. Put up a motion, or an amendment to the acting president’s motion, and find out who wins. Move for a spill, if you want, and if you think you will win – but that's still looking forward. The validity or invalidity of past actions are of little moment.

In general, executives and chairs are going to be cut quite a bit of slack, and black-letter law doesn't mean much in unincorporated voluntary associations.

Best wishes,
Agony Uncle.

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