Where did this new board member spring from?
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 was hoping you could help clarify some issues relating to bringing on a new board member in our organisation.
The board accepted an application from a community member for board membership at the last meeting. After the minutes went out to board members (some weren’t there on the day), we received an email about the new member’s position. It said:
I note with interest the addition to the committee and several new decisions.
I would like to point out some problems stemming from lack of quorums:
Meeting 21 October – Insufficient attendance for a quorum. Meeting deferred to 21 November. Original agenda to stand.
Meeting 21 November – Meeting deferred for "mediation". No meeting, no new agenda.
Meeting 7 February – Original agenda from 21 October should stand.
There are items in the minutes of the 7 February meeting that were not present on the Agenda of 21 October and therefore should be unable to be brought forward as per clause 17 of the constitution. This action contravenes the constitution, which says…
The agendas of 21 November and 7 March do not mention a new committee member, which needs to be agreed to by the committee before the person joins the board.
Therefore, at this time, according to the constitution, the board of management does not have a vacancy. For a new person to join, there must be a vacancy as per Clause 10.2.
Clause 8 deals with termination of membership and is not applicable in this case.
Clause 14 discusses casual membership and this does not apply either.
Therefore there are no open positions available on the board, and the membership of this new person should have been placed on the next new agenda to be discussed by the committee before being declined until the next AGM. There is no place for a person to "rock up, join and then come on the board”.
The clarification needed is this:
When the application was tabled, there was a vacancy of vice chair. The person who sent this email has proclaimed himself as vice chair. There are no minutes verifying this.
So, was there a vacancy at the time if the position of vice chair was vacant at the time this person was accepted onto the board?
Uncle Uncle says:
There are two questions arising from the correspondence.
- Was there a breach of your constitution?
- If there was, what are the consequences?
Was there a breach of your constitution?
The attached email refers you to a clause that mandates that if a meeting is adjourned then the meeting it’s adjourned to must confine itself to the agenda of the previous adjourned meeting. That clause, however, refers to general meetings. It has no relevance to the committee of management, which has much greater freedom to organise its affairs.
If the new agenda was circulated a reasonable time before the new committee meeting, that’s certainly all that’s required, and even if business is introduced for the first time at the meeting that’s generally still valid.
The difference is that all committee members are assumed to know that they’re supposed to turn up at every meeting, whatever’s on the agenda, while ordinary members of the group aren’t under any obligation to turn up at an AGM, and they need to be specifically notified of anything contentious.
Casual vacancies
The committee has the power to fill casual vacancies on the committee. The question then is “Was there a vacancy?” You say that there is, because you don’t have a vice chair; the other side says there isn’t, because you do have a vice chair. If there’s no record in the minutes of a previous election or appointment, there’s a dispute over what the committee has in fact decided. That dispute should be decided by the committee; and I would say that in appointing someone else as vice chair the committee has for all practical purposes decided that there was a vacancy.
If there was a breach, what are the consequences?
The real lesson from this is that it’s up to the committee to decide just about everything. The constitution is an important constraint, but every constitution has areas it doesn’t cover, bits that conflict with other bits (as here, where 10.2 refers to clause 8 when it should refer to clause 14), and bits that are so inconvenient that everybody’s silently agreed to pretend they don’t exist. People, furthermore, make mistakes, act out of ignorance, or straightforwardly break the rules. And the question is what happens afterwards.
One answer, which the complainant seems to be pushing for, is to unwind everything back to the point where the mistake took place and then start over. This is seldom the best way to do things. Life moves on, people have made plans on the basis of the changes, and restarting would probably waste a lot of everybody’s valuable time and might well come to the same conclusion again. Far better, in most cases, to throw it in the committee’s lap and say “Forget about the constitution. Given where we are now, how would you fix it? OK, let’s do that.”
Constitutions are not self-enforcing. If the committee does an ad hoc fix in good faith, no regulator is going to come after you. Any complainant would have to take it to court, and the court would very probably take into account the very good chance that if everything was restarted the committee would just make exactly the same decision again. Unless the committee was operating under some misapprehension when it made the previous decision, its best course is probably to reply to the complainant “That’s our decision. X is the vice chair, you’re not. Ball’s in your court.”
This still applies even if I’m wrong about whether there was a vacancy. I’d still say that the best solution would be a vote of the committee (though in that case I could see why the complainant would be annoyed).
That said, you should probably review your constitution to see what’s gone wrong, and you should certainly review your minute-taking to see why there’s a dispute over a matter that should be utterly straightforward.
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