Included in the Annual General Meeting package was the following:
Directors Term of Office
a) Section 90 of the ACT provides the details governing the Term's of Office for Directors:
* The Election of Directors shall take place yearly or at such other interval NOT EXCEEDING FOUR (4) years as is provided by the "Articles", and all Directors then in Office shall "retire", BUT ARE ELIGIBLE FOR RE-ELECTION. (REF: Section 90 (2) of the ACT)
Section 90 (2) of the ACT actually states:
The election of directors shall take place yearly or at such other interval not exceeding five years as is provided by the articles and all the directors then in office shall retire, but are eligible for re-election.
Another inclusion from the Co-op states:
*The "Articles" or By-laws may provide for the election and retirement of Directors in rotation, but in that case no Director shall be elected for a term of more than four (4) years and at least two Directors shall retire from Office in each year. (REF: Section 90 (4) of the ACT)
Section 90 (4) actually states:
The articles or by-laws may provide for the election and retirement of directors in rotation, but in that case no director shall be elected for a term of more than five years and at least two directors shall retire from office in each year.
If the Co-op is going to quote the Co-operative Corporations Act, then quote it. Don't make things up.
Another inclusion by the Co-op states:
(b) Any qualified Member of [Co-op] may run or rerun as the case may be, without any mandatory waiting period, as is consistent with the "Volunteer Principles" of the Co-operative Movement and with the Provisions of Section 90 of the ACT. Refer to ARTICLE 10.00 on the Members' Right to Remove any Director before the end of the Elected Term.
There is no Article 10 in our By-laws.
Article 5.11 TERMINATION OF DIRECTORS states:
(b) The Members may, by resolution passed by a majority of votes cast at a general meeting, remove any Director ...
(c) The Board may remove a director from Office ...
Article 10 in The Co-operative Corporations Act does not pertain to removal of Directors.
Nominations for the Board of Directors then ensued.
A Board member who wished to stand for re-election was not present. The Board member's email messages were read to the membership from a cell phone. This was indeed very strange - since the inception of the co-op members had to be present, in person, to be eligible for election to the Board of Directors.
Members were shrilled to silence when the member writing on the flip chart decided to let out a gigantic whistle like the kind I learned to do in Grade 7. Perhaps this 4-fingers in the mouth method will replace the gavel. No doubt there's an opportunity for her on the horizon.
A member asked a Board member a question - hadn't she been on the Board for about 6 years? The Property Manager quickly interjected by saying that the Board member is serving out her two-year term and completely obliterated the fact that this Board member had sat on the Board of Directors for 3 years along with the external Board Members when we were under going our 3-year semi-take over. In all this Board member will have been on the Board of Directors for 5 straight years by the time her term is over. No problem though because members can now immediately run for election again. Prior to this revelation, Board members had to retire for a year before running again.
It's all in how you play the game ...
It'd be no fun if a BOD/PM would quote the ACT (let alone be proficient in understanding it) accurately.
ReplyDeleteYour citation of s. 90 is correct. But there's no such thing as an "article" in the ACT. Sections, subsections, clauses, sub-clauses etc. If the Co-op is citing Article 10 of the by-laws, it would be contained, if it exists, in the Organizational By-Law.
The biz of "re-running" can be murky and I don't think it is covered in the Act. If your by-laws are set up as most are, then the rotation of two-year terms is such that two directors have to "retire" each year. Assuming they have only filled one term, they can run again for a 2nd two year term.
What's not usually covered in the by-laws is the whole thing about a waiting period between double terms. It's often left open-ended so that theoretically, the break can be as little as 24 hrs. Say a director who retires after two terms but is approached by the BOD to fill a sudden vacancy. Nothing stops that from happening unless Members refuse to ratify the app't.
By-laws (at least ours) also don't cover situations as to how to count an irregular term such as when a director takes over somewhere during the term of another. Do they add up the months to reach 24 or do they argue that since this person was "filling in" technically he has not served in his own name yet?
Consistency with co-operative principles is a bogus line of reasoning. You go by the Act first, then the by-laws --- Co-op principles are meaningless in elections.
Act does not mandate that candidate for election be present at a meeting. If they're absent and get elected, they have 10 days to accept the position in writing S. 89 (4)
Wonder why your PM was interjecting at Member's question about length of time served by director. Doesn't BOD know rules? Oh, wait...
Don't know what happened during your takeover but if somehow the by-laws were suspended then technically, maybe it resets the clock as far as length of director's term and their eligibility moving forward.
Simply put, Co-op will interpret by-laws and Act as they see fit regardless if they have even checked them or possess the mental capacity to interpret them correctly.
Our Organizational By-laws jump from 9.08 (Dissolution of Co-op) to 10.01 Sector Support - no Article 10.00.
DeleteThe Act and our By-laws don't stipulate how long a Director who has served out his/her term has to retire for, but the practice has been for one year. I have not tracked when a retired Director might be appointed to the Board.
Absolutely, co-ops must abide by The Act and the co-op's by-laws - not the principles of co-operation.
It may well be that a candidate for an election need not be present, but it has never been allowed before. Again, manipulation of the rules.
The By-laws were not suspended when we had the semi take over. A By-law was simply adopted to allow 3 non-resident Directors to sit on the Board for a period of 3 years. After that the By-law expired. No where in the documents leading up to the Special Meeting or at the meeting were the words 'By-laws Suspended'. In fact our By-laws were used throughout the 3 yr. semi take over. I wrote this in my blog post entitled Power Play (November 27, 2011) and in prior posts. I was surprised to read in Power Play that we went through almost the same thing then at our AGM.
Thanks for your input.
Just a general observation. With all your posts to date in 2013 due to all the lunacy happening at your co-op, you're on pace to shatter your previous highest yearly blog count.
ReplyDeleteWho says co-op life is always dull?
Keep at 'er
That's pretty funny, but there is a story to tell. I'm not finished!
Delete