Lynton and Barnstaple - Operations and Development

I'd agree with 35B that proxies are something of an historic anachronism with the development of opportunities for electronic voting. That's only possible if the necessary provisions have been included in the Company's Articles. How proxies can be used is governed by company law so they can't just be given to the members at large . The grantor of a proxy can always instruct how the proxy holder is to vote and that includes proxies appointing the Chairman or a trustee. They may end up exercising votes both for and against in accordance with the instructions given.

It's an old chestnut addressed on here before but the observation in an earlier post was that "it's hardly a democratic process". Agreed, but companies and incorporated charities aren't designed to be member democracies like a club or society. The law governing their management gives the members very limited rights to influence their direction. That includes replacement with alternative trustees of a charity (which its members do have power to effect) because those replacement trustees would still be obliged to act in the best interests of the charity which may not be the same as majority member opinion. As discussed before, in the case of a charity the duty of its trustees would be to disregard a member vote, however decisive, if the trustees conclude it would put at risk the realisation of its charitable purposes. For instance, suppose the members voted for extension in some form involving considerable cost which the trustees conclude would undermine the financial viability of existing operations at Woody Bay. In those circumstances the trustees would be duty bound not to comply with the members' wishes.

 

However, accepting the points made and not relitigating the issues around resolutions, the election of directors or trustees is an electoral process and it's a reasonable expectation that such elections are conducted in a fair and democratic manner; the issue here is that the conduct of the Chair and (especially) Company Secretary have cast doubt on that procedural fairness.

 

The 'problem' with proxies for the recent May meeting IMHO was that the proxy vote form offered ONLY the chance to give your proxy to the Chairman and not to any other person of your choice (with perhaps an alternative if the first was not available to attend on the day). There was then the risk that, if you altered the form to specify your own proxy choice, the form might be rejected as 'invalid' on the whim of the Secretary and/or Chairman.

 

But I assume you could still instruct the Chairman how to exercise your proxy vote?

 

Yes - but if the Chairman is willing to proceed with an AGM in the full knowledge that it was invalid, and remove nominees from the list of candidates, in contravention of the M&AoA, would you trust him to exercise them as directed?

 

And there we have the heart of the issue - how can normal governance be relied upon if trust is so absent?

 

As an EA shareholder, @Old Kent Biker it was really good - thank you!

 

Trust Article 25 is very specific. "Any member of the Trust entitled to attend and vote at a General Meeting shall be entitled to appoint another member as his proxy to attend and vote instead of him and any proxy so appointed shall have the same right as the member to speak at the Meeting."

The ballot paper is attached. How that could be used to appoint a proxy other than the Chairman is totally unclear. Indeed it suggests that only the Chairman may be so appointed.


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Looks to me that there's more wrong with that than just the missing option of appointing someone other than the chairman.

 

If only Annes name had been on there as it should have legitimately been, it would have saved the trust approximately £3000.00, added together with the approx £1000.00 for the not so independent inquiry and the mess of voting a couple of years previous at approx £6000.00 the trust would have had £10k to put towards better things but its blatantly obvious the only thing certain trustees excel themselves at is spending others money without a care in the world

 

Am I the only one who thinks there is something slightly sinister about having to vote "against" a trustee on a form that has the voters identity on it?
Surely it is good enough to vote "for" or just leave the "for" box blank?

 

Go on.....

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IIRC the railway of which I'm a part conducts postal votes for elections via a double envelope method. You return your actual voting slip (anonymous) in an envelope, which goes inside a larger envelope along with the signed ballot form.
Someone opens the large envelopes, verifies the voter's eligibility, and puts the small envelopes in a pile. Then the small envelopes get opened and the votes counted.

Voting systems where a number of members are elected together to a number of vacancies can introduce various interest issues as an individual voter, which for and against voting can be intended to help to address (although it often doesn't). In a tightly contested election working out how best to vote to get your desired outcome can be quite difficult.

Just to give examples of this:
Imagine we have three candidates, Adam, Ben and Chris for two positions.
I really want Adam elected, I'm OK about Ben and I don't want Chris.
The current vote tallies are 4 votes for Adam, 5 Votes for Ben, 6 votes for Chris.
With only voting for:
If I vote just for Adam, then Adam and Ben tie, and we find out what a losers tie break does.
If I vote for Adam and Ben, then Ben beats Adam and not Chris, and Ben and Chris get elected.

With voting for and against:
If I vote for Adam and against Chris, then they all tie.
If I vote for Adam and Ben and against Chris, then Ben is elected and Adam and Chris tie break.
If I vote for Adam and against Ben and Chris then Adam and Chris are elected.

Of course I don't actually know the vote tallies, so when I vote I'm trying to guess the relative popularity of the various candidates.
A much better system would be to get voters to rank the candidates in preference order, but even then working out exactly how to distribute the preferences gets complicated!

 

BRPS elections are done using a preference system, though the precise workings of that system are somewhat vague in the articles! If there is a contested election, you have as many votes as there are vacancies, and you add them in preference order against your candidates. However, I think that in the first instance all votes count equal so you get the total number voted for each candidate regardless of position; the preferences are I believe then used to split a tie.

For example, in your scenario, assuming there are three candidates for two vacancies:

Voter A: Adam - 1 Ben - 2
Voter B: Ben - 1 Chris - 2
Voter C: Adam - 1 Ben 2

Ben - 3 votes (elected)
Adam - 2 votes (elected)
Chris - 1 vote

But if you went:

Voter A: Adam - 1 Ben - 2
Voter B: Ben - 1 Chris - 2
Voter C: Adam - 1 Chris 2

Then you get

Adam - 2 votes
Ben - 2 votes
Chris - 2 votes

S0 there is a tie, and you look at the first preferences, which give you:

Adam - 2 first preference (elected)
Ben - 1 first preference (elected)
Chris - 0 first preference

I think that is how it works!

Voting is anonymous and there are no votes against, only for.

Tom

 

As far as I can recall the only reason we have proxies votes is that for most of the GM in the past we can never get the 5% of members to attend. if this was not available then no business could be agrred to.
But you are correct in that voting could now include electronic voting.

 

One of the challenges for may heritage railways is that they depend on volunteers to help with administration of things like AGM's where compliance can require professional knowledge and expertise. Of course they could buy that in at considerable expense but the inevitable temptation is to have a go and hope that it's about right. In many cases the members'/voters are no more knowlegeable about the intricacies of company and charity law than those well meaning volunteers so mistakes may not be noticed.
Normally a proxy form would refer to the members' right to appoint proxies as provided in section 324 of the Companies Act 2006 and, most importantly specify the address at which proxies must be lodged and the deadline for their receipt ( a maximum of 48 hours before the meeting).
The form copied is an odd mix of a proxy form, but without some of the essential information and conditions, and a voting form where votes would normally be on a show of hands unless a poll is called for.

 

Having had to deal with specific legal & regulatory matters as a volunteer, I sympathise with those doing so as volunteers. But I have also found that clear advice is available and that a little planning and patience go a long way, especially combined with a degree of humility.

The issue in 2023 was that lessons from 2021 had not been learned or, it appears, listened to when reasonable issues were raised. I share the frustration expressed by @Meatman regarding the money spent unnecessarily as a result.

 

It's actually a positive in a contested election - if a voter marks AGAINST rather than leaving both blank, nobody else can add a cross in the FOR box. Particularly useful if a voter doesn't wish to place all the votes at their disposal.

 

Perhaps the answer(s) in such cases is to either (a) provide an 'Abstain' box or (b) allow the voter simply to strike out the revelent nominee's entry without then declaring that form to be invalid.
But I would suggest that the most important thing before the next GM is to review all the issues which have been raised in the past about the proxy form, produce a new version, and - most importantly - get it 'peer reviewed' by a number of members before it is issued.

 

Exactly right. I've always seen an 'against vote' as an indication that you are not voting 'for' that candidate. This becomes important when you are not using all your 'for' votes.