Talk:2024-12-10 AGM Agenda/Constitutional Changes/Special Resolution, Removal of a trustee

To start a new topic, click Add Topic in the toolbar above. To comment in an existing topic, click edit next to the topic title.

How to add clarity around the outcome of a complaint?

"complaint" is a bit vague and means that even a complaint leading to something as minor as an informal warning could then lead to the removal of a trustee via this process. However, allowing the constitution to rely on specifics of the complaints policy (which can be changed with a simple majority vote by the trustees) doesn't add much safety anyway. We could simply remove that bit entirely and use "removed from the board with an N-1 decision" - as far as I'd understand, at that point N would still be seven, which means unanimous agreement of the other six trustee (zero nays and zero abstains) which seems relatively safe anyway. -- Aaron (Asj, talk) 18:31, 23 November 2024 (UTC)

Matt suggested some alternative wording which has now been included in the special resolution.

"A trustee may be immediately removed from the board with a N-1 decision if warranted as a result from a complaint against the trustee", from

"A trustee may be immediately removed from the board due to the result of a complaint and an N-1 decision."

-- Aaron (Asj, talk) 19:14, 23 November 2024 (UTC)

Legal Questions

All trustees are made directors of Nottingham Hackspace Ltd. That means this is not about removing a trustee but about removing of a director. That makes this a legal process with a default statutory process and requirements [1] [2] [3] [4] [5] . Variations on the statutory process must stem from the Articles of Association[6]. From a quick scan of the Articles of Association[7] there is no special provision for the removal of a director. As such only the NHS Ltd shareholders can initiate this process.

With regard to the proposed constitution changes: IANAL but I do not believe the substantive parts will stand up to scrutiny. Specifically the key phrase "if warranted as a result from a complaint against the trustee":

 * "If warranted" means everything and nothing.  
 * "a result from a complaint" does not mean the complaint was upheld.  A complaint thrown out as malicious is also "a result from a complaint".

The company directors cannot be expected to operate under such an arbitrary guillotine. "If warranted" hinges on "what is warranted". If "what is warranted" is meant to include things other than "a default not of our choosing" then we need to set this out in detail before the transgression and not make it up afterwards. Further, the complaint must be substantiated in a fair and proper process.

NB. Looking a the the NHS filings at Companies House I could only find AoA attached to the Incorporation document[8] for "Nottingham Hackspace Ltd". This is clearly different from the AoA pointed to here[9]. When was Companies House notified of the change(s) to the AoA which got us from the incorporation version to the nottinghack site version ?

Duncan (talk) 21:56, 24 November 2024 (UTC)

forgive me, but how are the filed AoA different? I see the general stuff at the top, but the AoA seem the same if you scroll down?

I haven't fully read it though, so maybe I missed something?

James (talk) 08:41, 25 November 2024 (UTC)

I agree that "if warranted" still leads to ambiguity - please make a concrete suggestion of what this could be changed to. I'm not aware of any differences between the copies of the AoA, other than slight numbering inconsistencies. --- Aaron (Asj, talk) 08:51, 25 November 2024 (UTC)

Duncan is correct about this being a removal of a director, but as the only "shareholders" of the hackspace are the trustees, then this should not really be an issue.

(shareholders is quoted as it is not quite the same in a company limited by guarantee, but the difference doesn't matter here I don't think)

we should enshrine some of the process in the constitution though, especially around the 28 days notice, etc

James (talk) 08:55, 25 November 2024 (UTC)

RE: Difference in AoA version. At a minimum article numbering is clearly different. Eg. "Liability of Members" is article 2.1 in the Companies House (CH) incorporation documents and article 1.7 in the nottinghack (NH) version. The CH version also has internal references which are absent from the NH version. Eg. CH Article 52.1 starts "Subject to Article 52.2..." but the NH equivalent article 3.14 does not have this constraint.

Duncan (talk) 09:40, 25 November 2024 (UTC)

Ah so there are a few differences, but I think these are more typographical issues than an issue with the text or a difference in meaning. In cases where the articles are legally called upon, the version used isn't going to be off a random wiki controlled by the organisation, it's going to come from Companies House. I think these issues are off topic from this constitutional change, and that we should discuss it somewhere else at a later date. The easiest solution is likely to just link the wiki to CH or download and upload here.

--- Aaron (Asj, talk) 10:37, 25 November 2024 (UTC)

Will N-1 work in this case?

I can see the need for something like this, but I worry that N-1 might not be enough.

N-1 was there to ensure that the trustees could make a "unanimous" decision without being hindered by a non-active trustee. Assuming the target trustee does not vote to remove themselves, if they have just one supporter, or one of trustees is not currently active, then N-1 will not work.

Maybe we need to call out a second option - calling an EGM, which a simple majority of trustees can do. This is very much a nuclear option though!

James (talk) 08:47, 25 November 2024 (UTC)

I think modifying it to be "N-1 or EGM" would be ok if you wanted to draft some text. --- Aaron (Asj, talk) 08:53, 25 November 2024 (UTC)

Maybe this would be enough:

====1.8.1 A trustee may be immediately removed from the board with a N-1 decision if warranted as a result from a complaint against the trustee, or through a vote by members at an EGM.

-- Aaron (Asj, talk) 09:24, 25 November 2024 (UTC)

The statutory mechanism allows for the removal of a directory by a 50% majority of voting shares. IANAL but I'll assume these people[10] know better than I when they make the statement: "This right of removal by the shareholders cannot be excluded by the Articles or by any agreement". This indicates the actual shareholder vote to remove must stand outside any internal procedures HS has for deciding if/when such a vote needs to be taken.

Further: In taking a vote all directors are required to declare conflicts of interest which then open further cans of worms (see AoA). If a director has investigated an issue raised by a member and presented it to the board for a vote to remove another director then they arguably have a conflict of interest. If a director raised the issue against another director they clearly have a conflict of interest in the final vote.

Duncan (talk) 11:02, 25 November 2024 (UTC)

The articles allows termination of a director when they cease to be a member, which presumably happens automatically through the complaints policy when a member is banned. Perhaps we need to rewrite 1.8.1 entirely to better align with the articles. e.g.

1.8.1 A trustee may immediately be removed from the board due revocation of membership (e.g. due to a ban) while following the complaints policy, or through a members vote at an EGM.

How do people feel about that? suggestions absolutely welcome, thanks everyone! --- Aaron (Asj, talk) 11:43, 25 November 2024 (UTC)

Membership in the AoA is defined by[11] (ie. being entered onto the companies register of members), not paying subs to use the the space membership. Are all "paying subs to use the the space" members entered onto the companies register of members ?

I don't think the "ceases to be a member" clause can be used to subvert the statutory process for removing a director. I _think_ this clause covers when a share owning director sells all of their shares they cease to be a member and therefore also cease to be a director.

Duncan (talk) 14:18, 25 November 2024 (UTC)

I'm not sure subverting is the right word. I think this might happen already by default, and the idea is to codify that into Constitution, since it looks like it's already effectively written into the Articles. In fact this is why I didn't add "N-1" vote to my proposed alternative above.

The Register of Members is maintained by HMS automatically when the "Current Member" role is added/removed, and in fact as far as the HMS is concerned, banning a trustee removes them from the Trustee's "Team".

To quote the Articles,

1.81 Termination of director's appointment

1.82.2 that person ceases to be a member;

and Membership can be terminated via 1.109 of the Articles or 6.4.2 of the Constitution (which implies the following of the complaints policy).

I think this is my current preference

--- Aaron (Asj, talk) 15:21, 25 November 2024 (UTC)

Ok, bear with me because it has been a long time since I looked at these things, but: (all numbering for AoA is from CH version)

Hackspace does not have "Shareholders", we are not a "Company Limited by Shares", we are a "Company Limited by Guarantee". There is not a huge amount of difference, but in effect each member has guaranteed £1 to the space in case of collapse. In this case, there is no mechanism to remove a director through a shareholder vote, as we don't have any.

All trustees are directors of the company, and directors *must* be members - section 22.2. Additionally, who is a member of the company is entirely up to the company - we hold a register of members on HMS.

The directors (trustees) can also terminate any member (section 31.2) - as long as the member has a right to be heard (this is already enshrined in our banning process). So as soon as a trustee is banned, they are no longer a trustee.

So, in summary, I don't actually think we need this at all - a trustee can be removed by a resolution of the trustee board (Constitution 6.4), and a resolution only requires 4 "Yes" votes (and less than 2 "No") - (Constitution 2.3).

In reality then, this addition would make it more difficult than it currently is to remove a trustee! (but I understand that it is confusing - I had to really read through the AoA and Constitution to remember that)

James (talk) 17:25, 25 November 2024 (UTC)

Thanks James, I mostly agree with that but I'd still argue this is needed for two reasons.

* The Constitution (and certainly the Articles) only covers a mid-term election due to early resignation. It doesn't cover what happens when they are banned (and therefore there's no notice period). This is the reason for 1.8.2.

* 1.2.1 and 3.3 are currently incompatible with removing a trustee by banning them as a member.

I'm going to update the proposed change to what I wrote in my comment at 15:21. We should probably make a new section at the top of this talk page for further comments on that as it's getting a bit squashed here :D

--- Aaron (Asj, talk) 19:01, 25 November 2024 (UTC)

Duncan's Suggested Alternative

• Amend the AoA (CH A.23 Termination of Director's Appointment) eg. "21.1.8 are subject to a decision under the Company's disciplinary policies that requires their removal as a director." (IANAL, hopefully something like this would fly)
• Create a Director's code of conduct (DCoC) and disciplinary policies. This will allow director specific items to be covered and different conditions to be applied (such as 75% vote for changed to the DCoC) vs a simple vote for any members CoC. The DCoC would then need to:

1. Stipulate that all directors agree to be bound by it.
2. Set out expected standards of behaviour (being careful to identify those which may give grounds for removal as a director)
3. Set out what happens when a director is alleged to have breached it; how that is to be investigated.
4. Articulate what actions and sanctions the other director's can take over and above what is in the AoA eg:
   1. Request the director desist from any behaviour giving rise to a breach
   2. Request the director alleged to be in breach step out of a meeting so that it can be discussed
5. Give the accused the chance to respond and fair representation
6. Stipulate how a breach is determined eg. If the directors (in an M-N vote ?!?) determine that a director has committed a breach of the code then ...
7. Set out what heppens in the event it is determined that a director is in breach eg:
   1. The breach shall be minuted
   2. The board may recommend the director in breach undergo disciplinary procedures (probably needs a separate document) -- the "50% majority of voting shares" to remove the director would then be a possible conclusion of the disciplinary procedure.
   3. The board may resolve to report on the matter at the next members meeting

etc etc

The upcoming AGM could then consider a motion like: "The members request the trustees/directors propose an amendment to the AoA and a DCoC for approval by them members at an EGM to be called for that purpose but no later than the next AGM. The trustees/directors will make regular reports on progress in this matter to the members meetings."

Duncan (talk) 14:18, 25 November 2024 (UTC)

Referencing and numbering

Love the new wording! Can I suggest though that we remove the number reference?

So, "or removed following 1.8.1" would be become "or removed (see Removal of Trustees).

This is only to keep the Constitution neater in later years - when you want to add or remove a section in later years the diff becomes huge if everything refers to numbered sections!

Same goes for the reference to 3.3

This is only a suggestion though, doesn't impact the fact that the wording is great :)

James (talk) 13:25, 26 November 2024 (UTC)

I think it makes sense but I'm a bit unsure how to reference specific subpoints concisely without using their numbering (actually spotted an error just now, I should have written 3.3.3 not 3.3 :D). There is also one case where another point has been referenced this way in the constitution (e.g. 5.3.2). Happy to change to named sections if others prefer that and it can be done in a way which is specific enough.

-- Aaron (Asj, talk) 14:39, 26 November 2024 (UTC)

What if they stop paying?

Thinking about this a bit:

+ ====1.8.1 A trustee may immediately be removed from the board due revocation of membership (e.g. due to a ban) while following the complaints policy, or through a members vote at an EGM.====

vs

+ ====1.8.1 A trustee may immediately be removed from the board due revocation of membership (e.g. due to a ban while following the complaints policy), or through a members vote at an EGM.====

The latter would cover a case where someone has just decided they don't want to be involved anymore ( (╯°□°)╯︵ ┻━┻ ) and have stopped paying, but may benefit from a 14 day window or something like that.

Being able to cover all of the following in the same set of changes would be great:

• The member is banned, and therefore can't be a trustee
• The membership lapsed due to no payment and it's been x number of days
• The trustee resigned with immediate effect (which should arguably lead to some kind of complaint actually)

In any case, I feel quite happy with how the current changes are proposed and would gladly present them at the AGM as they are. Maybe save this for another AGM...

-- Aaron (Asj, talk) 14:48, 26 November 2024 (UTC)