Lynton and Barnstaple - Operations and Development

Are you saying that if one or two members out of several thousand do not give their written consent then everyone must receive a postal ballot? In this age that sounds truly extraordinary if true.

 

IIRC from the WSRA situation, those seeking an EGM had to bear the cost of printing out all the necessary forms and sending them out to members asking for their support, hoping of course that those who did support them would pay the postage to send them back! The forms were collated and handed to the Association when sufficient had been gathered (+ some extras in case any were ruled invalid) to invoke the EGM. It was the Association which then had to bear the cost of calling the EGM.

The 'reformers' were entitled also to ask the Association, when calling the EGM, to include with those notices a 'flyer' outlining the reformers point of view, because of course there were far for members in the wider world than just the 5-10% who had been canvassed for initial support. The reformers had to pay for those flyers to be printed, but not the cost of posting them as that was part of the EGM process. On one occasion the Trustees effectively threw away several hundred pounds worth of reformers' leaflets and distributed their own leaflets instead, rebutting all the points made in the reformers' leaflets which of course the members never got to see. So, you have to watch out for 'dirty tricks' in such a situation :-(

 

No. You must obtain the written of members to receive future notices of meetings by electronic means. For those who agree you can then use e mail. For those who don't consent, or just fail to reply, you must continue to send hard copies by post

 

That is not necessarily the case. It depends on the definition used in the AofA for "in writing". If the definition includes "by electronic means", that is covered, although it is sensible to include provision for those unable to participate electronically.

 

The obligation on companies to verify prior consent to their use of electronic communication is specified in Schedule 5 of the Companies Act 2006.

 

As far as I can see, the M&AoA give no definition for 'in writing'. However I note that Clause 1 on 'Interpretation' does say "...Subject as aforesaid, words or expressions contained in these Articles shall, unless the context requires otherwise, bear the same meanings as in the Act....", so it is possible that if 'the Act' contains something which allows for 'in writing' to be done electronically then that could be applied.
The only specific mention of electronic communication in the M&AoA is in Clause 29 in relation specifically to proxy votes.

 

Interesting. Can you supply the chapter and verse for that ruling please ?
Edit : Crossed with your reply re the Companies Act. Thank you.

There seems to be no prohibition to seeking, by email, the individual's authority to provide them with notices by email . The clause reads :
Agreement to communications in electronic form

6A document or information may only be sent or supplied by a company in electronic form—

(a)to a person who has agreed (generally or specifically) that the document or information may be sent or supplied in that form (and has not revoked that agreement), or

(b)to a company that is deemed to have so agreed by a provision in the Companies Acts.

 

OK. That makes sense.

 

OK How abut forgetting the expense and hassle of a EGM (or Non routine general meeting if you prefer)?
First I don't know what the Articles of Association say about the number of trustees so someone will have to check....
1. Is there a specified maximum number of trustees?
2. if so are all those positions currently filled?
3. How many trustees are required to retire by rotation at the annual General Meeting?
4. Do the sums, Unfilled positions + retiring positions = the minimum number of candidates you need to field to try to get elected to form a majority.
It might take a couple of annual meeting is to get enough 'pro' trustees on the board to gain control but once there in the majority they have every right the replace the current chair (Who is not sacked but stays on as an ordinary trustee) with one of their choice. (Officially the 'chair' is re-elected by the board after every GM but this is generally forgotten which allows the previous chair to continue unopposed)

 

Agreed. The interesting question that raises is whether the three new trustees could legitimately use the company's e mail database to ask members whether they would consent to be contacted by e mail in connection with the assembly of the necessary 5% threshold for an EGM. Despite the confident assertions to the contrary in the Minority Report, and subsequent communication, I am far from convinced that they were GDPR compliant uses of the charity's database. Proper use is by the charity as managed by its board. By definition, as they are a minority, the three new trustees were not using it with the authority of the board but in pursuit of a personal agenda. If, as I suspect, it amounts to a GDPR breach it's hardly a serious one, indeed some members no doubt welcomed it. However, if I'm right it would render ineffective any attempt to establish the 5% threshold by that method.

 

1 Yes - 9
2 Yes - all 9
3 One third of those in post, so usually 3
4. I think you will find that most of the members seeking change are already well aware of that situation. But, let's be honest, knowing what we do now about the way in which 'old' Trustees treat newcomers, would you want to stand as a Trustee and take on the financial and legal risks of being accountable for their legacy?

 

I think the question of e-mail is a bit of a red herring here; the issue is personal data, not the specific format of that data.

In GDPR terms, all a member's personal information is subject to GDPR, but consent will have been given to allow that data to be used for the proper business of the organisation. So sending out notification of an AGM is proper; sending out a flyer to promote a special discount at Exmoor Ponies 'R' Us (who - hypothetically! - have paid the trust a useful sum to access the membership database) isn't lawful. That holds whether it is the e-mail or snail mail addresses that are being used.

The question is therefore whether sending out the minority report constitutes the proper business of the Trust. The minority trustee opinion is essentially that they are required as Trustees to draw the members' attention to the true financial position, and would be derelict in their duties if, having found that out, they did not then disclose it to the membership. If that position is true, then using the personal member data held by the Trust to bring the situation to the members' attention is permitted, indeed you could argue required. There is no distinction I can see about whether they use e-mail or snail mail to do so.

The key GDPR question to test, therefore, would seem to me the proposition that the minority Trustees were obligated to draw the true position (as they understood it) to the attention of the members. If that proposition is true, then there is no GDPR breach. Only if you believe that they have no duty to highlight a position that is at odds with the Trust Board's stated position would there then be an issue to consider under GDPR.

Tom

 

Agreed, and the fact that the ex cathedra responses from the Trust confirm the central concerns of the Minority Report - and in doing so, are an acknowledgement by the Trust that their previous assertions have been wrong, implying that they agree that they have deliberately sought to mislead the Members, supporters and stakeholders - means that this is a wholly legitimate use of the mailing list in the discharge of their Trustee responsibilities. Given what is coming to light, the bigger surprise is that those who have been in charge for a long time haven't resigned.

 

With respect, having done this (!) and assuming the charity is a company limited by guarantee, it’s not really a conventional GDPR matter. There is a specific provision in the Companies Act to allow this for this purpose, which means it would be GDPR compliant.

The provisions pre-date the GDPR, and so include severe (and criminal) sanctions for misuse of the Company database information.

Robin

 

Charity Commission guidance is that if you can't as a member of a board, go along with the majority decision you should ask for your disagreement to be recorded but then your only options are to accept collective responsibility for something you disagree with or resign.
There is another option that is only available to trustees where, as in this case there are serious allegations of improper governance. The proper course in that event is for the trustees concerned to make a Serious Incident Report to the Charity Commission. Unlike the members the Commission is able to do something about it if, following investigation, it is satisfied that the majority trustees have not behaved properly.

 

Doesn't it depend on what the member has consented to? Any use of personal data is legal if the member has consented.
Certain websites say "tick here if you're happy for us to share your info with carefully selected third parties" etc. If you tick the box, then it's legal for them to pass on your info to pony's 'r' us.
An organisation must seek permission for any use of personal data whatsoever. So it all depends on what you agree to when you become a member. What terms and conditions you sign up to. Most organisations say that by becoming a member you automatically consent to certain uses of your data such as holding it electronically or posting you newsletters etc. I can't now remember what the L&B say.

 

Indeed, and I am assuming that the default is the minimum use of data (so no mailings from Ponies 'R’ Us). But the minimum has to include the legal business of the Trust, since it would be unworkable otherwise. So the question to me is not really about GDPR, it is about whether drawing the members’ attention to serious governance issues is the duty of any Trustee who discovers it.

Tom

 

At some point, @Lineisclear , you're going to stop making a fool of yourself when you recognise that majoritarianism of the sort you keep endorsing is meaningless if the majority are concealing material facts from the members, supporters and stakeholders. Please, for your own credibility and that of the organisations you serve, have a little think about the implications of your approach.

 

I think that is an accurate assessment. The question is whether the statutory duty of directors to act in the best interests of the company creates a duty to report perceived corporate governance failings to its members/shareholders?

 

Not entirely, because GDPR allows processing of Personal Data for a number of legal purposes. Only one of these is consent by the individual for the processing of their Personal Data.

As individuals, we get very focused on consent, a point reinforced by constant cookie consent boxes (themselves not strictly a GDPR matter), and lose sight of those other purposes.

I would hesitate to go as far as calling it a "duty", but sharing that information is IMHO acting in the best interests of the company in this instance. To leave that situation confidential within the boardroom, having already tried and failed to reach an acceptable resolution, is in neither company nor membership interests.

The charge from the "three" in the first "Minority Report" was that they hadn't been granted access to materials that they were entitled to and that their analysis from publicly available information suggested a very different picture to that disclosed to members. This was circulated privately to members, and led to a pair of responses (one from the Trust, one from the CIC) that rejected the findings while in essence confirming the substance of the Minority Report. Minority Report 2 follows up on those loose ends, and makes clear what state the "three" consider governance to be in.

I regard this as absolutely within the remit of directors, especially where they have been denied the ability to fulfil their roles for no legally valid reason.

I would prefer that this was in circulation "midyear", while there is time for resolutions to be found and problems solved, then as part of the run up to the AGM, where it would be much more of a partisan matter.

We are discussing a membership organisation, where there are moral duties owed to the members that sit alongside directors' and trustees' legal duties. I would suggest that collective responsibility needs to be understood in the same form as that in politics. It usually takes the form of putting a blanket over differences of opinion, and is often a polite hypocrisy required for things to be done. But, at times, when it is breached, the external scrutiny enables change to happen where secrecy just lets issues fester.