A newly appointed trustee is troubled when the chair arranges a meeting without the chief executive. What is the protocol for meetings, they ask?
Dear editor,
Last week a trustee asked the chair to arrange a meeting of the board but without the chief executive (CE) of the charity. I should mention that the trustees have never met without the CE being present and dominating the agenda. The chair agreed and asked who wanted to attend. But one trustee refused, as he felt the CE should be there. The chair then decided to cancel this meeting, stating that he is not prepared to have a meeting with one of the trustees not there. The board consists of six trustees including the chair. A quorum for a meeting is three. Does the chair have the authority to do this and can we have occasional meetings without the CE, who is not a trustee?
Yours sincerely,
A newly-appointed trustee with a commercial background
Dear newly-appointed trustee,
The way in which meetings should be called, and conducted, is generally set out in the charity’s governing document. If the governing document contains provisions relating to meetings they must always be followed. The term ‘chief executive’ is not used in the charities legislation, or indeed the Companies Act 2006, which applies in relation to charitable companies. In practice the title is applied to a number of different managerial roles.
If the CE is a trustee, he will have the right to be notified of, and to participate in, meetings. If he is deliberately not given notice, a resolution passed at the meeting may be void, even if the charity’s governing document permits majority decisions and a majority of the board vote in favour of the resolution. However, this is a surprisingly grey area and the position may depend on the specific provisions of the governing document.
It seems clear from your letter that, in this case, the CE is not a trustee. It does not necessarily follow that he or she does not have the right to be notified of the meeting. For example, the governing document of the charity may give them this right. They may be entitled to notice of meetings, and to sit in on them, under his or her employment contract. In the latter scenario, if notice is not given, this will not invalidate the meeting but the CE may bring a claim for breach of contract (or indeed resign in protest).
Assuming the CE does not have any right to be notified in this case, it is up to the trustees whether they proceed with the meeting without the CE. This may be perfectly justified if the CE tends to dominate the proceedings and this obstructs the decision-making process. On the other hand, the trustees might be criticised if, by excluding the CE from the meeting, they cut themselves off from a crucial source of information.
Subject to this point, the chair would be entitled to call a meeting without the CE, giving notice to all trustees, and if one of them did not turn up (in protest at the exclusion of the CE), that would not invalidate the meeting or resolutions passed in it (assuming the quorum requirement was met).
Hannah Candlin Solicitor, Speechly Bircham LLP
