Lynton and Barnstaple - Operations and Development

Ah. Ok, if so, that puts a very different spin on it.
However, that's for him to clarify, and so far nothing is forthcoming.

 

According to the charities commission no-one has the power to veto a valid nomination

 

This is a very good point. Bearing in mind the Trust membership (around 2500-3000), the pool of those both willing and able to take on the role of Trustee must of necessity be quite small. There is much to be said for recruiting some trustees with a wider net, especially as among them will be a wide range of training and experience in trusteeship from within heritage and other charity sectors. All that experience can only help to improve opportunities for the Trust.

 

No!

 

Clearly that needs to be changed. So is Anne Belsey a member of the trust?

 

Yes, I believe she is.

 

Anne at PRESENT is a life member, this rule clearly needs to stay, i would have thought it is a standard rule for any trust with membership, its obviously there partly to safeguard trustee's from being removed by the other trustee's through the backdoor, for example if enough trustee's weren't happy with one trustee they could get a majority vote to rescind that trustee's membership thereby removing them as a trustee, likewise they could for instance rescind Annes membership and then she wouldn't be able to legitimately stand (there are people out there who have had their membership rescinded over the years) it also opens up the risk that ANY TRUST'S trustee's could rescind the membership of any nominees who they see standing that they didn't approve of before the paperwork has to go out so the members would never know so that really would open up a can of worms

 

Sorry I am confused. I responded to a post which stated that you didn't have to be a member to stand as a trustee. I would have thought that it was obvious that only members should stand as trustees. Not sure if a rule is needed to be added to state this or not - so maybe nothing need changing. I'm not sure which rule you were referring which needs to stay. I know very little about Anne apart from what I have recently read on this forum.

 

I am an elected trustee, in a non-railway body where only members are eligible for election. There are however a number of trustee places reserved for co-opted members of the board. Those trustees do not have to be members (though I believe all were at the point of co option), and are selected for specific skills that they bring to the board.

I have no issues one way or another with co option or election of non-members as trustees. What matters - and is far from clear in this instance - is that the manner in which selection is undertaken is clear and transparent - which is far from the case here.


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I might not have set that out very well but i was referring to the rule that non members can stand as trustee's. i was just stating that if members only were allowed to stand i could imagine that it could possibly be open to abuse

 

Hi - Thanks for the clarification - Harold

 

There are clearly often variances between the M&AoAs of different Trusts. For example, the L&BRT is the only Trust to which I belong which does not require that a person being nominated for Trustee must be a Trust member. Conversely, unlike some other Trusts to which I belong (or am familiar with) it does require that anyone appointed as a proxy (to vote at a GM on behalf of a member) must be a member also, whereas elsewhere it is permissible for a member who can't attend a GM to be able to send any other person (eg spouse, friend etc) on their behalf even if they are not a member.

 

In the interests of transparency, here are my two most recent notes to Company Secretary Tony Nicholson.

The first note has just been sent, the second was sent yesterday. Frankly, if there was a clear basis for vetoing Anne Belsey's nomination, it would have been a five minute job to tell me where to find the power in the rules and explain who it was vested in. As this hasn't happened, I conclude that the power doesn't exist.

Toby

____________________

Dear Mr Nicholson,

Thank you for your note yesterday at what I appreciate must be a busy time; this letter is not one I'd ever want to write, and I wanted up front to thank you for the magazine and for your excellent book on the railway which I have thoroughly enjoyed.

As I'm about to book accomodation in Devon to make the AGM, I would be grateful for an early response to my reply to your note. Very frankly, I cannot see anywhere in the M&A that anyone - including you as Company Secretary - is invested with the power to veto a nomination which your email yesterday implicitly conceded was valid.

I should stress that I do not know Anne Belsey personally, and to the best of my knowledge I've never met her or spoken with her; Anne and I have exchanged a couple of emails of a perfunctory nature as I've sought to understand what has happened. My interest here is solely in the good governance of the Trust that needs to form the foundation of building trust and confidence between the Members and the Trust Board as we recover from the lapsing of the Planning Permission, so that we can get on with rebuilding the L&B.

This means three things.

First, that the Trustee ballot without Anne Belsey's candidacy is invalid. It should not go ahead; if it does, then it will be meaningless, and those 'elected' will have no standing. Given that this is a clear breach of the rules, to proceed would reflect extremely badly on the Trust leadership as a whole, but I'm afraid it would reflect particularly badly on you as Company Secretary and Mr Miles as Chairman.

Second, in the absence of a clear power to veto valid nominations, whoever was involved in the purported vetoing of Anne's candidacy has on my reading acted ultra vires and should immediately proffer their resignations.

I'm sorry to say that in the first instance this must include you from your post as Company Secretary, but it must include anyone who purported to direct you to remove Anne's name from the ballot. I don't know if such a direction existed, but frankly I find it hard to believe in such a politically charged atmosphere that you took such a significant step without consulting any of the Trustees; any who directed or acquiesced in the decision to veto Anne's candidacy should also immediately resign for grossly inappropriate behaviour.

Third, the concerns raised on NatPres over the timing and notification of the AGM appear to make the whole exercise invalid. As many members prepare to make a significant commitment of time and money in the middle of a cost of living crisis to come to the AGM in person (something that could be ameliorated by allowing attendance on Zoom/MS Teams, I would in passing note), it is critical that we know we're not wasting time and money to attend a meeting that is actually contrary to the M&A and therefore null and void. I would therefore ask you to set out the timetable to demonstrate its legality as your last act as Company Secretary before resigning.

In the interests of transparency, I am copying this email to Anne Belsey and Peter Miles. As I do not have Mr Miles's email address, I am forced to send this through the 'Membership' tab of the 'Contact Us' section of the website.

Sincerely yours,

Toby




On Sat, 29 Apr 2023 at 13:22, Toby Fenwick <toby.fenwick@gmail.com> wrote:
Dear Mr Nicholson,

I take it from this that Anne's nomination was properly completed and filed on time, and therefore would be valid before someone took the decision to exclude / veto her nomination.

Could you point me to the relevant section of the M&A where this exclusion power is vested, and who gets to exercise it, please?

Sincerely yours,

Toby

 

Peter Miles' and all other Trustees' and Directors' telephone numbers, postal and email addresses are included in the back pages of all L&B magazines.

 

Oh, many thanks, @Old Kent Biker . I'll find a magazine and send this to all of them, then.

 

On Exmoor NG someone asked for the earlier emails in this chain. There were only two, here they are:
____________________

My email to Tony Nicholson of 26/04/2023 15:31:

Dear Mr Nicholson,

I am simply an ordinary member, and received my AGM pack in the post
yesterday. As I understand that Anne Belsey validly filed nomination papers
to become and L&B Trustee, I was surprised to see that her name was not on
the ballot.

As you will know better than I, *all* valid nominations need to go to the
Members for a vote, and so if Anne's nomination was validly filed, the
ballot without her name cannot be valid and must be re-run.

I would be grateful for an early reply; in the interests of transparency, I
am copying this to Anne.

Yours sincerely,

Toby
______________

Tony Nicholson's response of 29 April

Dear Mr Fenwick,

I have been away and just seen your message.

You may not be aware that Anne Belsey currently faces a disciplinary
investigation on serious - potentially criminal - charges. It would not be
fair on her for me to say more but it would clearly be inappropriate for
her to stand for election as a Trustee until the matter has been resolved.

Yours sincerely,

Tony Nicholson

 

My observations are two-fold.

First, everyone is innocent until proven guilty by an independent and impartial panel with evidence presented and a right of reply. Ergo, to exclude someone *before* the process has begun, much less concluded, is to prejudge their guilt, which is obviously wholly unfair.

Second, if there was a rule that said 'we can exclude candidates subject to proceedings', then there would be a clear incentive for unscrupulous leaders to initiate 'proceedings' on spurious grounds in order to veto nominations that were unwelcome.

Whilst one would hope such a scenario would be far-fetched, it would be completely inappropriate to have such a power available.

 

Quote from the Charity Commission regarding adherence to the governing document;
"The charity’s governing document should say how and when you should organise meetings and how to vote on decisions. You must do these things exactly as the governing document says. If you don’t, any decision you make during a meeting could well be invalid."
As Toby has correctly articulated (and I can confirm) there is NO facility in the governing documents which would permit either the Secretary and/or a member of the Trust Board to arbitrarily exclude a valid nomination for election as a Trustee. Having sought the appropriate professional advice, unless the Trust Board can provide a compelling and valid reason for Anne's exclusion, then they are indeed acting ultra vires. Critically, the Board is obligated to provide Anne with its reasons for excluding her from the ballot. Adopting the 'Bunker mode', refusing to communicate with her is a gross abuse of process possibly exposing the Trust to punitive remedial action for defamation. Therefore, any ballot proposed at the AGM for candidates to be elected to the Board which excludes Anne, will be null and void.

 

Beware of the consequences of this getting to the level of regulatory intervention. The Actors Benevolent Fund has been in the news of late and the decision of the Charities Commission following a disputed election has come as somewhat of a surprise based on what’s been reported.

The outcome has not necessarily been to the long term advantage of the charity.


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It would be very unfortunate if the Charity Commission had to come in and use their Discretionary Disqualification Power to remove Trustees. The test is here:

When will the commission use this power?

The commission will only use this power in cases where it is satisfied on the facts that there are sufficiently
serious and substantial grounds that make it necessary or desirable to act: this is the commission’s approach
to the use of any of its compliance powers. The commission can only use the power where the 3 following
statutory criteria have been met:

1. At least one of the 6 conditions applies.

2. The commission is satisfied the person is unfit to be a trustee.

3. The commission is satisfied it is desirable in the public interest to make the disqualification order to protect public trust and confidence in charity or charities.

As with any of the commission’s powers, before using this power the commission will also have regard to equalities and human rights considerations and the principles of best regulatory practice.

Of the Six Conditions in criteria 1, three are relevant here:

Condition D: a trustee, officer, agent or employee of a charity was responsible for, contributed to or facilitated misconduct or mismanagement in a charity or the person knew of the misconduct or mismanagement and failed to take any reasonable step to oppose it

Condition E: an officer or employee of a corporate trustee was responsible for, contributed to or facilitated misconduct or mismanagement in a charity or the person knew of the misconduct or mismanagement and failed to take any reasonable step to oppose it.

Condition F: other conduct, whether or not in relation to a charity that is, or is likely to be, damaging to public trust and confidence in a charity or charities

The test in Condition D or E is the same: "responsible for, contributed to or facilitated misconduct or mismanagement in a charity" . This is a broadly drawn clause and it is reasonable to suppose the ultra vires vetoing of Trustee nominations falls sqaurely within it - especially in light of @The Terminator 's reference above to

Condition F also applies here - the internal mismanagement that has been revealed this week clearly "damages trust and confidence" in the charity, and will need to be repaired.

So, against the Charity Commission's test, Trustees who "contributed to or facilitated misconduct or mismanagement in a charity or the person knew of the misconduct or mismanagement and failed to take any reasonable step to oppose it." appear to have placed themselves in a rather sticky situation, as the only defence is to show that they did take reasonable steps to oppose the misconduct and mismangment which led to Anne Belsey's nomination being (illegally) 'vetoed'.

Given that they could individually be banned from being a Trustee in any UK Charity for up to 15 years, as well as the personal reputational hit of being removed by the Charity Commission for effectively misconduct in office, I hope that they're carefully considering their actions and inactions in not insisting that Tony Nicholoson do his job and place all valid nominations - including Anne Belsey's - into the Trustee election.

Prompt resignations and apologies to Anne would seem to be in order.