Regulatory case study: Calling an Annual General Meeting. A thematic report from the Charity Commission for Northern Ireland

Transcription

1 Regulatory case study: Calling an Annual General Meeting A thematic report from the Charity Commission for Northern Ireland February 2016

2 This case study provides an anonymous, real life illustration of some of the regulatory work the Charity Commission for Northern Ireland s enquiries team deals with on a regular basis. The aim of the Commission s suite of thematic reports is to highlight to charities common regulatory issues which have arisen within other charities, so they may learn from the mistakes of others. As an example of a regulatory case, this study also demonstrates how the Commission works with charities to resolve concerns it receives, using the powers within the Charities Act (Northern Ireland) 2008 to take action where necessary. Calling an Annual General Meeting An Annual General Meeting (AGM) provides the leadership of a charity, such as its trustees and senior staff, with an opportunity to keep members updated on progress during the year, to elect new trustees and to present the charity s accounts. As such, it is an important opportunity for the charity s leaders to explain how they have managed the charity, to highlight important decisions made, milestones or challenges, and for members to ask questions. However, not all charities are required to hold an AGM. To see if your charity should be holding an AGM, you should check the charity s 1

3 governing document. This a legal document which represents the rule book for the way in which the charity will operate. As well as information on the charity s purposes and powers, it should include administrative provisions relating to the charity s governance, membership (where applicable) and internal arrangements for meetings, including the AGM. If the governing document does not stipulate that an AGM must be held, the trustees may still wish to consider calling one, perhaps using the term general meeting or stakeholders meeting, so that stakeholders/members are assured the charity is being open and transparent. Whether or not a charity is required to hold an AGM, the trustees are only bound to act on decisions taken by members where the governing document directs that those matters must be decided at such a meeting. It is therefore important an AGM is called in line with any directions in the governing document, and that trustees are clear about the status and purpose of the AGM, with information clearly communicated, within the set timescale, to those attending. A concern received The Commission received a concern that the members of a charity had received notification of a forthcoming AGM which was not in keeping with the charity s governing document, in this case Articles of Association. While members had been notified of the AGM 12 days prior to the meeting being held, the did not meet the 14 clear days requirement for notification which was stipulated in the Articles of Association: The minimum period of notice required to hold a general meeting of the company are: a) Fourteen clear days for an annual general meeting; b) Fourteen clear days for all other general meetings. The Articles also highlighted that a general meeting may be called by shorter notice if it is agreed by a majority of members having a right to attend and vote at the meeting. However, the concerned party said no agreement in relation to a shorter notification period had been made by the majority of members. 2

4 The concerned party also claimed that the charity responded to concerns about the reduced notification period by citing an IT system failure. In their defence, the charity had quoted from the Articles of Association, stating: the proceedings at a meeting shall not be invalidated because a person who was entitled to receive notice did not receive it because of an accidental omission by the company. On assessing the concern, and the supporting documentation provided, the Commission opened a regulatory case into the governance of the charity and contacted the trustees for clarification. The charity explained to the Commission that the AGM had already taken place and that a computer error had caused a delay in notice being issued to the members. While the Commission was aware the governing document provided the caveat for an accidental omission, it was noted that the issue regarding communication with members was identified before the meeting took place. The charity had not made any attempt to rectify the matter, for example, by seeking agreement to proceed on shorter notice with the majority of the members. As a result, any decisions taken at the subsequent meeting were considered invalid as the AGM had not been convened in accordance with the Articles of Association. The Commission issued regulatory guidance to the charity stating that a general meeting must be held, in accordance with the Articles of Association, in order to validate any decisions made. The charity followed the Commission s guidance and, thanks to the action and co-operation of the trustees, a satisfactory conclusion was reached. Useful guidance It may be helpful for you to refer to the following guidance, available on the Commission s website: CCNI EG024 Running your charity guidance CCNI EG042 Monitoring and compliance guidance getting it right 3

5 Lessons for other charities As highlighted above, a charity s governing document represents the organisation s rule book and, as such, must always be the primary guide for trustees when managing the affairs of the charity. Note A charity s governing document should lay out the procedures for organising meetings and how to vote on decisions. Charity Trustees are under a legal duty to follow the rules and procedures exactly as set out in their governing document. If they don t, any decision made during a meeting may be invalid. The people of Northern Ireland put a great deal of trust into the charities they support. The onus is on charities to return that public trust and confidence by ensuring they follow good governance practices. While a shorter notification period for calling an AGM may not seem like a major issue, failing to follow the correct procedures can be enough to spark concerns amongst the charity s members, services users or the wider public. Additionally, as identified in this case study, it can have wider ramifications with the charity potentially in breach of the law, having to expend resources on a second meeting and perhaps isolating those who support it. That is why, where the Commission identifies incidents of charities failing to adhere to their governing documents, this will be viewed as a failure in governance and will likely attract enforcement or regulatory action. This is not a discretionary matter. 4

6 Charity Commission for Northern Ireland 257 Lough Road Lurgan Craigavon BT66 6NQ Tel: Fax: TextPhone: Follow us on This document is available in large print or other formats on request 5