In this help sheet series, Our Community’s resident agony uncle, Chris Borthwick, offers answers to frequently asked questions about issues not-for-profits are facing.
Q: Our club is due to have its AGM soon. I am on the committee, and there is a history of conflict between committee members. One of the committee members has self-appointed herself to run the Zoom meeting. But if she is running for a position on the committee and/or has a perceived affiliation with someone else running for a position, I don’t believe she should be allowed to control who is in and out of the meeting, count votes, etc. I am outnumbered, so whatever I say is overruled. Can the result of the election be declared invalid if she runs the Zoom meeting and the voting process?
A: The answer, I am afraid, is probably not.
To a certain extent, that would depend on what had actually transpired on the committee. If the person concerned had self-appointed herself at a meeting of the committee, for example, or even if there had been a committee meeting after the self-appointment had become known and nobody (except you) had objected, then the presumption would be that the committee approved of the appointment, even if there was no specific motion to that effect.
No court would reverse such a decision on the grounds that it had not been approved by the committee when the only outcome of such a finding would be that the decision was sent back to a committee that was already known to be willing to approve it; it would be a waste of your time, your opponent’s time, and (much more important, in the eyes of a court) the court’s time.
You raise issues, too, of conflict of interest. I do not attach much weight to this. Many, many not-for-profit elections involve actions taken by persons standing for election. Unless your constitution specifically places elections in the hands of an independent observer you have no real case.
However, what is the chair doing in this matter? What role do they have in handling the Zoom meeting? Normally some, at least, of the proceedings would be their responsibility.
In the end, though, some important words are missing from your query.
Can the result of the election be declared invalid by whom? State regulators will not intervene in constitutional arguments; that’s a matter for the members. The Australian Charities and Not-for-profits Commission (ACNC), if you’re a charity, gives committees a great deal of rope. Going to the courts is almost always a stupid move.
It would certainly be preferable to have a motion specifically setting out who was responsible for what about the AGM, but if you can’t get the numbers, the committee is entitled to allow the person concerned to run things.