Charity Trustees: taking urgent decisions and meetings
In uncertain times and facing an unprecedented situation charity trustees are responsible for ensuring that making sometimes difficult decisions about their charity's services and how it is run. Trustees are facing some difficult decision-making over the next few months particularly in terms of the suspension of vital services and the knock-on effect on service users who may be reliant on these or vulnerable. It is particularly hard for trustees to take difficult decisions and to have detailed discussions in the midst of Government's advice to restrict non-essential social contact. Many charities, particularly those with older trustees will not wish to hold face to face meetings whilst this remains the Government's advice.
The Charity Commission's Guidance - Charity Meetings: making decisions and voting explains how to hold charity trustees' and members' meetings so that decisions can be made legally and the charity can run effectively.
If a charity has a dual-system of governance and has trustees and a wider voting membership then trustees may wish to consult the charity's membership as part of their decision-making process particularly in a climate where difficult decisions might have to be made.
Certain types of decisions are reserved by law or the charity's constitution to the charity's voting members who The Charity Commission's Guidance states may be required to vote on issues including:
- changing the charity's constitution
- closing down or winding-up the charity or any part of it
- merging the charity with another organisation
Having regard to the charity's constitution in respect of convening valid trustees' and members' meetings is important - particularly in situations where urgent decisions have to be taken quickly. The charity's constitution if it is up to date will usually contain provisions about whether meetings must be held in person or whether video or telephone conferencing or other methods of communication may be used.
If the constitution is silent and does not specify how meetings must be held then it is important to ensure that people attending can see and hear each other as per The Charity Commission's Guidance.
Charitable companies can also take advantage of provisions in the Companies Act 2006 which allows electronic meetings where members are able to speak and vote.
It is important that trustees have regard to quorum requirements for taking valid decisions at trustees' and members' meetings. The quorum is the minimum number of trustees or members who must attend a meeting so that valid decisions can be taken. The charity's constitution would usually specify the quorum, but if this is unclear then trustees should consider amending the constitution to clarify the quorum.
If a quorum is set too high in a situation where an urgent decision has to be taken this can cause problems if the decision is challenged later and the meeting at which the original decision was taken is found to have been inquorate. Charities where the quorum for meetings is set too high may wish to take action to amend their governing documents to lower the quorum so that absences do not make it difficult to hold a valid meeting.
What is an appropriate quorum will depend upon each charity's specific set up and situation. However, the Charity Commission recommends in the Guidance that the quorum for trustees' meetings is a minimum of one third of the total number of charity trustees plus one. The example given is that a charity with ten trustees should have a quorum of four.
The Guidance emphasises that it is also important for charities with a wider voting membership to take into account the quorum which needs to be appropriate taking into account the size of the charity, the number of members and their geographical spread.
In circumstances where it is proving difficult to make a valid decision because of inquorate meetings The Charity Commission can make an Order temporarily lowering the quorum to facilitate valid decisions. If trustees are in any doubt about taking valid decisions they should have regard to the charity's constitution and seek advice where appropriate including from The Charity Commission. As ever the difficulty remains that if it is an urgent decision, and not possible to achieve a quorum, it could take several weeks to obtain a Charity Commission Order lowering the quorum - hence preferable to amend the quorum if at all possible and whilst there is time to do so.
Administrative amendments to the charity's constitution to lower the quorum and to facilitate taking urgent decisions by electronic means or by written resolutions are administrative changes that do not require the prior written consent of The Charity Commission.
It is also important that trustees keep minutes of every meeting and recording discussion and rationale for decisions.
This can be an arduous task particularly for one that is voluntary and often it is the same person who is responsible for this. To ensure that good minutes are taken trustees may wish to consider devising a rota so that everyone takes on their fare share of this responsibility. The Charity Commission's Guidance recommends that minutes do not need to be verbatim, but should give:
- the name of the charity
- the type of meeting (e.g. trustees' or members' meeting)
- the date and time of the meeting
- the names of those present
- who chaired the meeting
- what capacity people attended in, such as trustees or staff member
- any absences for agenda items due to conflicts of interest
- apologies for absence
The Guidance also recommends that the minutes need to record clearly and accurately what was agreed and any follow-up action and who is responsible for it, particularly for important or controversial decisions.
The Charity Commission recommends that minutes record:
- the exact wording of any resolution and who proposed it
- a summary of the discussion on each item of business
- information used to make decisions
- how many votes were made for and against, and how many did not vote
- what action is needed and who is responsible for taking it
- the date, time and venue of the next meeting
The Charity Commission Guidance ends with the very true statement that people can get very personally involved and passionate about their charity's work and where people feel strongly about something this can lead to debates and disagreement.
Particularly in situations where difficult decisions have to be made and then explained and communicated to other trustees, wider voting membership, beneficiaries and service users, trustees will particularly want to make sure that their decision-making processes are watertight which will minimise the impact of challenge later.
It is very difficult for the trustees at the moment in having to make urgent decisions in unprecedented circumstances. Having regard to The Charity Commission's Guidance, the charity's constitution and staying within these is a practical way of ensuring that trustees are discharging their duties and are adequately protected in an unprecedented situation. We can provide further advice and guidance if required.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.