Lynton and Barnstaple - Operations and Development

But that isn't what you said before. The board have the power to choose which resolutions they put to a meeting (s303 aside). That they have chosen some and not others (for whatever reason) may be seen as "not cricket" but it isn't illegal.
You argued previously that the motions are invalid because the full board didn't agree them. That argument is far more fruitful and all I have done is suggest what the board will say in response.

 

Plans were being made to extend way back in 2007 yet these plans were changed when a new Trust board took up position in favour of a bigger extension then that board showcased their plans, applied and got planning permission so surely they are the reason for discontent, they themselves by your explanation of what they should be doing have misled the membership into thinking that the railway would extend and have bolstered the members desire to see such extension, as they have not stuck to the rules that you say they are bound by then surely they are also responsible for not using trust funds wisely

 

Actually, I disagree there - that power is NOT lost.

Unfortunately I've not yet received the paperwork yet and I've misled the extract that I had, but.....the proposed new AoA still includes the provision for a member to be nominated by members for election as a Trustee, the change being that his/her nomination must be signed by 10 members rather than just one.

There will indeed be a vetting process. But - as someone whose employment required regular vetting - I know that 'vetting' is a process whereby a candidate's credentials are examined and assessed as to his/her suitability. [For example, does the person have a criminal record (eg for fraud), have they been dismissed by previous employers for various reasons etc etc.] The actual decision (eg do we employ this person or not) is made not by the vetting process, but by some body to which the results are provided.

There is nothing in the proposed new AoA that I can find which states which body that might be - eg the Nominations Panel or the actual Board etc. More importantly, there is nothing which I could find either which states that getting your nomination on the actual Agenda for the election is dependant upon 'passing' the vetting process or requires any other sort of approval. So what in effect you will have is the situation similar to exists with some other Companies where various people are nominated for election as Directors at an AGM and the Board says "we recommend A, B and C, but not D and E because..." and the final decision rest with the shareholders/members/voters.

Provided that the nomination is valid, then I can't find anything in (what I have seen so far of) the proposed new AoAs which gives the Board - or anyone else - the power to veto a nomination. If I've missed it, then no doubt someone will correct me! Otherwise I ask - why on earth are the Board stirring up all the trouble at the moment for something which may not achieve what they seem to want anyway?

 

My views are totally and exclusively my own.

ikcdab has answered your perfectly reasonable question. To be honest I don't know for certain if he's correct but it seems likely.

It would be safe to assume that the 3 would have voted against so the outcome would have been the same even if a vote of the full board had been held.

 

It might well. But if the board did not discuss and resolve this at a properly constituted meeting, it is not a board decision.

Shadow directors are rightly frowned upon, as is shadow governance. Procedures like the requirements for presenting resolutions exist precisely because it is essential that the legal status of decisions is clear.


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I don't think the 2nd March date is correct. If the other motions are pursuant to members rights under section 168 special notice (28 days) is required so the opportunity to table them at the AGM has already expired.

 

Sorry, should have read EGM

 

so what you're saying here is that because the 6 are the majority they have no need to put anything they desire to the full board, they can just rubber stamp what they want, but surely under the rules every trustee has to be included in the decision making at a board meeting to make it legal, what it looks like your suggesting makes all of this BS a waste of time and the claims by the '6' that the '3' are disrupting board decisions has no merit because they can just agree between them and rubber stamp it without going to the '3'

 

I've been learning about the Companies Act very rapidly this week, @ikcdab !

For clarity, my view at this point is that:

(i) The EGM is valid;

(ii) Motion 3 (the Special Resolution M&As) was voted through by a proper Board Meeting and is valid (s168 CA 06);

(iii) Motions 1 & 2 do not appear to have been voted through by a proper Board Meeting and therefore are not valid becuase they are not 'corporate actions' within the meaning of s168 CA 06;

(iv) 'The Six' want to use the fact that a legitimate EGM is happening to push their Ordinary Motions as ordinary members, whilst blocking anyone else from lodging motions - and this is a completely unsustainable 'cake and eating it' double standard.

So either 'the Six' get up an EGM on the basis of s303 CA 06 (with the 5% requirement) and pay for the costs personally; the Board could open up the EGM agenda; or the Board could removes Motions 1 & 2 from the EGM Agenda.

Thoughts?

 

For someone who is such a stickler for the rules, it is somewhat surprising that you brush off a flagarant breach of the rules with such haste. The removal motions are either legal (properly voted on at a minuted board meeting), or theyre not. This is black and white. You cannot allow things to happen "because its safe to assume person X would've agreed". You're into mind reading territory now!

 

@Lineisclear it would be Special Notice to remove Directors under s303 (CA 06) of 21 days before the meeting.

EDIT: I got confused here. Per below the Special Notice Period is 28 days, which I've corrected below. I'm not going to change this in case it means things further downthread make no sense.

Apologies again, Toby

 

Precisely right, @ghost

 

so it should stand that the chairman and 5 other trustees cannot oversee or be part of the meeting when the two ordinary resolutions are discussed

 

I'm not sure that is the main concern now, even if it perhaps was earlier. S*** happens. My main concerns are the consistently poor approach to dealing with such setbacks, and to maintaining frank, open, honest and transparent two-way communication with members AND ALL STAKEHOLDERS over many years, plus the seemingly convoluted, murky approach to spending MY money and explaining how and why it was spent.

Part of the reason for this, I believe, is that the Trustees don't (certainly not all of them) have a complete understanding of the role of Trustee, and have taken on too much - with many other admin, management and volunteer roles - blurring the distinction between trusteeship and those other vital roles.

I'm quite sure that none of the current trustees joined the L&BRT or became Trustees with the intention of stalling the project, but that is what has happened, and they have to bear (and admit) some responsibility for that. Honesty really is the best policy, and, as I believe WS Churchill said: "Jaw-jaw is better than war-war". I look forward to a bright and positive
future. Banners in Lynton in 1898 said "GOOD LUCK TO THE RAILWAY" but this time we need a lot more than good luck.

 

Then that decision/absence should have been minuted

 

I am appalled they could get away with that. I understood (or misunderstood) from reading postings on this site that Charity Law dictates that all Trustees are entitled to express their views at meetings and are encouraged to do so, and then vote, and then the majority view prevails, and the 'losers' fall in with that decision as a democratically elected body, and they are free to resign if they cannot abide by what has been decided by that majority view. If that can happen no wonder so few people are willing to serve as Trustees.

 

Now we're getting to the nub of the matter. There are two Ordinary Motions to remove Directors: one to remove Anne and one to remove Chris. I don't see why they shouldn't be allowed to vote against their own removal, but even if they are excluded, there should have been two votes with the remaining eight Trustees. It doesn't matter one iota if we think we know how it would've gone if there was a vote: what matters is whether these votes ever took place - and it appears that they didn't.

As such, 'the six's' Ordinary Motions can only be debated if the EGM agenda is open for others to put in their own motions.

But Tony Nicholson insists that the Trust has 'legal advice' that this can't happen, but Nicholson (conveniently) not only refuses to publish it, he (illegally) refuses to even share it with the Trustees, therefore depriving them of the information require to discharge their duties (notably, this is more gross misconduct from Nicholson who should be sacked.)

So we are where we are. On one hand we have 'the six' attempting a permanent power grab in the M&A change which seems to be going down very badly with the L&B Members, and on the other, an attempt to slide in two motions to remove two of their three opponents, largely for the thought crime of not agreeing with Peter Miles and Ian Cowling in a manner which is neither legal or legitimate.

As I've said before, there is a need to upate the M&As to allow for things like electronic voting. But this should be a careful and considered process, with consultation and opportunity for feedback. The only possible reason to rush these through now at significant expense to the Trust and to Members is for 'the six' to control the 2024 election, presumably because they're scared they'll lose. This alone is reason enough to reject these M&A changes.

What I think would be best for all concerned at this point is for the Board to cancel the EGM, and set up a working group of anyone who is interested to get involved in updating the M&As, with a target of bringing back a draft with options to the Members in the Autumn. Following Members' input, and any recommendations we get from the Charity Commission's investigation into our governance, these proposals should go to the Members at the 2025 AGM.

 

I agree with your analysis, the question is how motions 1 & 2 were agreed. What should have happened is that a full board meeting was convened where the proposals were tabled. The two concerned directors could speak, but then should have been asked to leave the room as they were conflicted. The remaining members would then vote and the two conflicted directors called back in.
I don't think we know exactly what did happen, but I suspect not that. I think we only have Anne's account of it. I am sure the directors would say otherwise.
Your point (iv) is true. But it's not illegal. It is unconscionable and goes against "fair play" but it is valid. Fair play is not a factor in promoting the best interests of the charity. Unless the three directors can prove that the motions were agreed at an invalid meeting, and I believe that would be difficult to do, then it will stand. You are dealing with people who play fast and loose with the rules so don't expect them to go for fair play.
As I said earlier, my opinion is that arguing the agenda in invalid is a lost cause. Efforts are now much better directed to pursuing members to vote against. One missive has already gone out. I believe that missive was too long, complicated and equivocal. Something else needs to be sent that is much shorter and clearer.

 

It is a failure though, not because the trustees failed to meet their charitable objectives, but they failed to do what they set out to do. The charitable objectives are rightly not particularly prescriptive, and there's room for a variety of strategies within them. It's true that not extending and sticking with what they've got would be perfectly valid under the objectives, but crucially that is not what the trustees were pursuing. Therefore they failed on their own terms, and I don't think it unreasonable to judge them on that.