Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
All full members are members under Company Law. We have twelve branches. Each branch elects one of their members to be on the board of the national charity. One branch is demanding to see the minutes of all board meetings and say it is their right. Another branch is demanding that we publish to the members the way individual trustees vote whenever the board makes a significant decision.
What are members’ rights to information of this kind?
A Frustrated Trustee
Dear Frustrated Trustee
I am sorry to hear that you are having a challenging time with the members of the charity.
The position with access to information is relatively straightforward:
The minutes of trustees’ meetings must be made available to all the trustees and, where appropriate, to the charity’s auditors and other professional advisers. However, the minutes are not open documents and do not have to be made available to the charity’s members or the wider public, unless the charity’s articles of association say so. If minutes are shared more widely you will need to put in place appropriate arrangements to ensure you do not unlawfully disclose confidential information or personal data. This may involve producing separate confidential minutes for selected sections of board meetings.
Similarly, there is no general obligation to publish the way in which individual trustees have voted at board meetings. Moreover, publishing the voting records of the trustees is likely to undermine the board’s ability to make decisions by consensus and to establish a proper sense of cabinet responsibility. While it is positive for your board to have lively discussion of important issues, once a decision has been properly made the trustees must all abide by that decision. It will be harder to achieve that if the trustees know their voting records will be shared with the charity’s members.
The publication of voting records may also exacerbate a more difficult challenge that you appear to face. You do not say so explicitly but your question suggests that your charity trustees face pressure from the branches that elect them to act as branch representatives, exercising their votes as trustees in the best interests of the branch rather than the charity as a whole. This is a common difficulty for membership charities and you may need to remind both the trustees and the branches of the legal responsibilities of the trustees to act in the interests of the charity, not just the branch by which she was appointed. It may also help to review the role of the branches and the way in which they are constituted.
Trustee, The Cyclists’ Defence Fund
Charity Lawyer, Anthony Collins Solicitors
This article was originally written for Civil Society Governance magazine March 2015
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