Nominations
Member-based organizations are required to hold elections to decide representation, contracts, bylaws and other internal matters. The rules for this are set out in the Constitution and By-Laws of the Association and many associations fall into the trap of grabbing a free template off the internet and then find that the powers are entirely inadequate to conduct business. This has the result that the Associations muddle along, making things up as they go….usually happily until a disgruntled Member comes along to challenge matters.
This can have drastic impacts, it can create:
– personal liability for the officers,
– it can create both legal and tax liabilities for the Association,
– it can result in an inability to change officers because the constitution is silent or parts are missing.
In many cases, Associations have resorted to having to make an application before the Court to get directions on what to do following a challenge by members. In some cases, this has resulted in a very costly exercise for the Association and in other cases it has resulted in a very costly exercise, even bankruptcy, for the challenging members. The results of any challenge are usually uncertain, and this is because unlike in the case of companies and partnerships, there isn’t a body of law to fall back on such as the Companies Acts or the Partnership Act. Therefore caselaw, or common law, fills the gap (or to the non-lawyers, the gap is filled by long-established custom or practice).
Nominations are one of the least understood areas of law so lets start from basics.
What is a Nomination?
A Nomination for a post can be made by someone else or can be a self-nomination. In its basic form, it is a declaration by the Nominating Person that the individual that they are nominating is the most suitable person for the post. For this reason, a Nominating Person can only nominate one individual for a post. Historic practice, which dates back to 1876 or earlier, is that if a Nominating Person nominates a second person for the post, they impliedly state that the first nomination is withdrawn because they have found a better person to nominate. As a result to first nomination is deemed withdrawn.
This is reflected in many constitutions which state:
“A Member may only make one nomination for any particular post”
It is one of the traps that associations need to beware about. Many constitutions fall into the trap of not understanding the historic common law and fail to appreciate that this is only a partial statement. There are two possible interpretations of this bland clause:
1: A Member may make only one nomination for any particular post and once a Nomination is made, the Member is not permitted to make any other nomination.
2. A Member may make only one nomination for any particular post and once a Nomination is made, unless it is expressly withdrawn, that Member will be prevented from making any additional nomination for the relevant post.
3: A Member may make only one nomination for any particular post. If a Member makes an additional nomination for a particular post, then the first nomination of that Member shall be deemed withdrawn.
The historic common law would suggest that the correct interpretation of the position is that in example 3 and it is the wording that constitutions are recommended to adopt. Example 3 l does not change the historic perspective that the subsequent nomination is effectively a declaration that the nominating person no longer has confidence that the original nominee can adequately fulfil the role that they were originally nominated to do.
This is why, historically, when nominations were sent by post, companies and associations sent out numbered nomination forms, so that multiple invalid nominations were not possible.
A second historic principle that arises from the effect that a nomination for a particular post is a declaration by the nominating person that the nominated candidate the best person for the job is that it is rarely appropriate for a nominating person to nominate a candidate for multiple positions. This practice is unfortunately very common in attempts to take over and control associations.
A carefully considered nomination will therefore be a nomination of one particular party for one particular post and there is nothing ill-advised about nominations for a number of posts if each nominated candidate is nominated for a different post:
It will be noted that the nomination for Big Al Monaghan as the Fan liaison and Catering Officer in form 1 is technically invalid as the Consent to Act signature is not provided. (If Big Al were illiterate then a simple mark on the paper would be a deemed signature). By historic convention in such cases, if Big Al Monaghan is present at the AGM, then the Chairman would ask Big Al at the meeting if he consented to act.
Historic precedent is unclear, but it is possible that the Chairman could permit, if thought desirable, that the AGM votes for the Fan Liaison and Catering Officer “subject to their acceptance”. In such as case if Big Al were to win but decline to act, then the Chairman would post-meeting invalidate the appointment and appoint the second place winner as the Fan Liaison and Catering Officer. This has the disadvantage that the members have not actually voted for the candidates willing to stand and therefore that vote-skewing may have occurred and the better process is to adjourn that vote, possibly to a postal vote or later electronic vote at an EGM, so that Big Al can be consulted. The Chairman could also not be criticised for stating that the nomination for Big Al is invalid and Big Al should be removed as a candidate.
The Secretary of the Association should have spotted this hole in the process when nominations were submitted and hopefully would have called Big Al and clarified their consent to act. The Secretary would then notify the Chairman of Big Al’s consent to act and he would have advised the clarification before the voting of the position is put before the AGM.
If you then look at the second nomination form by Emma Bradshaw, this is an example of what not to do and if typically seen where disgruntled members are trying to take over an Association – it has various names, such as “nomination stuffing”. It is ill advised as Members will often see it for what it is, namely an undisguised attempt to get a particular person or group of persons onto the committee.
The common law is unclear on the effect of this type of nomination. A strict application of the principle that a nomination is the statement of the Nominating Party that the person is the best candidate in their view for a post would imply that, as it is incredibly unlikely that a person could be the best candidate for all posts, it either that the nominations are invalid or that it is a statement that the candidate nominated has no particular skills for any post.
As it is possible that an experienced Chairman could hold other posts in a small organisation, then it is unlikely that common law would invalidate a selective multiple nomination and therefore unlikely that common law would invalidate multiple nominations for all posts and the convention is that the nominating party should be seen as desiring that the candidate nominated has no particular skills for any post, but would like to see them appointed to some post, but it matters not which post. These candidates should usually be avoided and this type of nomination is a material part of the reason why Nomination Committees have come about.
Multiple Nominations for the same post
Another flawed nomination is where a Nominating Party nominates more than one person for a post. It is rare for posts to be filled by multiple persons for accountability purposes and therefore such nominations will be void, subject to a couple of exceptions:
(i) The Constitution may allow job-sharing in which case multiple nominees for a single post will be allowed; or
(ii) The Constitution may allow for multiple persons to share the role (as may be the case for Dingley Dell F.C’s team selections).
In the case of (ii), it would normally be the case that more than one position is on the nomination form.
As can be seen from Form 3, the correct way to do a multiple role is as shown for the Recruitment Selection Official in Form 3. In this case, the Nominating Party is putting forward Michael Perry as a Chairman and also stating that Michael Perry can also fill the role of Country Liaison Officer and as a recruitment Official. The correct protocol for the existing Chairman is to put all the nominations forward as valid but if Michael Perry is elected as Recruitment Selection Official 1, then the Chairman should state that Michael Perry is elected as Recruitment Selection Official 1 and therefore no longer valid as a candidiate for Recruitment Selection Official 2 and that AGM members should not vote for Michael Perry in respect of the vote for Recruitment Selection Official 2.
It should be noted that each position is individually voted upon and the result announced by the Chairman at the end of that vote:
1. Closing of Nominations
2. Election of Chairman/Chairwoman
3. Declaration of results of Election of Chairman
4. Election of Treasurer
5. Declaration of results of Election of Treasurer
6. Election of Secretary
……etc.
It will be noted that the Nomination form for Eron Brady (Form 4) is invalid as Eron Brady has nominated two individuals for every role.
Nomination Committees
More recently, in the 1920s, a practice of Nominating Committees and Nomination Committees arose. A Nominating Committee and a Nomination Committee is slightly different.
A Nominating Committee receives nominations from the Members and sifts these for suitability.
For example, in our fictitious case of Dingley Dell FC, it would usually be considered poor practice for a newly qualified coach, who may know very little about how the Association operates to be elected to Chairman, particularly if they have not sat in the Association’s committee for a while. This is not a hard and fast rule as a newly qualified coach could actually have sat on numerous other committees and might have a wealth of experience of football administration from previous positions and have chosen to expend that knowledge by qualifying as a coach, in which case they are eminently suited for the post.
In many cases, anyone nominated is expected to publish to the Members their reason for standing and a statement of suitability and what they will bring to the Assocation if appointed. (For more on this see Nominating Committees below).
How Long are Nominations Open?
Unless the constitution says otherwise, nominations will typically remain open until voting begins. Where there is no nominated candidate, then the Chairman will immediately before voting starts declare a non-nominated position and seek nominations from the floor of the AGM.
Closing of Nominations
Nominated Candidates can formally withdraw at any time until the Chairman formally declares nominations closed.
Immediately before the vote starts, it is normal for the Chairman to formally declare nominations closed. Once nominations are formally closed, then no Candidates may withdraw and no new candidates may be added.
The Vote:
Today many elections take place via Zoom or a similar mechanism that allows for polling of members. It should be noted that each position is individually voted upon and the result announced by the Chairman at the end of that vote:
1. Closing of Nominations
2. Election of Chairman/Chairwoman
3. Declaration of results of Election of Chairman
4. Election of Treasurer
5. Declaration of results of Election of Treasurer
6. Election of Secretary
……etc.
A rather unfortunate feature of Zoom polling is that the host cannot vote in Zoom. This means that the members at the AGM may see votes such as:
The Vote for Chairman
Michael Perry. 11
Stuart Sterling. 10
Donald Twump. 2
although the Chairman will announce voting as
Michael Perry. 11
Stuart Sterling. 11
Donald Twump. 2
This is because the Chairman will usually be the Zoom host and therefore needs to add the Chairman’s vote to the tally, because Zoom does not do so.
In such as case, the Chairman would declare a tie between Michael Perry and Stuart Sterling. It would then be usual for the Chairman to use a casting vote to decide between the two equal candidates; however beware:
– A Chairman only has a casting vote in the event that the Constitution says so.
– In some Constitutions, a Chairman does not have a vote, only having a casting vote in the event of a tie.
– Some constitutions allow a re-vote with only the two tied candidates being put forward.
Zoom also has a limited time to vote and therefore Members should be made aware of this. There is no caselaw on whether this is legal, but historic precedent is for the Chairman to be able to limit voting time and therefore there is unlikely to be a successful challenge on this ground.
the election nomination process,
who can nominate candidates,
how to select nominees,
deadlines, and
candidate qualifications.