For introductory information on Trustees, click here.
PROCEDURES AND RULES FOR APPOINTING NEW TRUSTEES
(From 14 May 2020)
The Procedures That Apply in Recruiting New Trustees
The Rules That Apply in Appointing New Trustees
The Procedures To Be Applied In Recruiting Future Trustees
1. Publish the number of vacancies on the Board of Trustees, particularly to ensure candidacy is open to the widest pool of people and to aim to build an unconnected group of trustees.
2. Publish The Rules That Apply, noting that these must be in accordance with MPS’s Constitution, legal & regulatory requirements and decisions by Trustees following Charity Commission guidance.
3. Candidates may self-nominate or may be nominated by individuals or through agencies to the Board of Trustees.
4. In selecting candidates, account must be taken of the Rules that apply and of:
a. any special knowledge and experience the candidate holds that are necessary to the effective administration of the Charity and to the need to build on the skills of existing trustees;
b. Insight they might be able to give into beneficiaries needs and experience;
c. Background and experience in making contacts in the community;
d. Help they would be able to give with new ways of doing things;
e. Skills and experience from previous Trusteeships, work or voluntary activity;
f. Willingness to give their time to help to run the work of the Charity;
g. The number and experience or potential of individuals who have come forward through agencies or self-nomination, and expressed interest in becoming Trustee;
h. The need to aim to build a group of ‘unconnected persons’ as Trustees (as far as the circumstances particular to Montserrat will allow, while ensuring rigour and importance is given to Procedures 1 & 4.g above, on publishing vacancies and on the candidates and potential coming through agencies or self-nomination ); and
i. Any practical issues or problems which might be difficult to overcome and which might restrict the candidate from effectively taking part as Trustee in governing the Charity, thus resulting in additional pressure on the other Trustees (bearing in mind that Trustees can only be removed by using one of the powers in Clause 12 of the Constitution). Hence, the need to ensure the benefits of the appointment would outweigh any issues or problems there might be associated with the candidate.
5. Candidates being considered for appointment are to be provided with a copy of the most up-to-date version of the Constitution of MPS; the Charity Commission guidance ‘The Essential Trustee (CC3)’; any contractual arrangement between MPS and another organisation; and the Charity’s latest accounts and financial information.
6. Check that candidates can confirm they understand:
o That Trustees are not paid, but may claim reasonable expenses;
o That the Constitution governs all that the Charity and Trustees can legitimately do and how;
o Trustees roles, responsibilities and liabilities as in Rule 4 below;
o The need absolutely to meet the basic eligibility criteria at Rules 5 & 6 below;
o That they will need to make legal declarations through the Trustee Eligibility Declaration form which would need to be completed by them, signed and dated before they could begin to act as Trustee;
o That the Charity Commission's website provides ample guidance on all matters involved.
7. Candidates are to provide references.
8. Upon appointment, the details of new Trustees and their declaration form are to be submitted online to the Charity Commission. Details must also to be provided to the Bank, together with certified proof of ID & address and copies of Minutes of the Meeting of Trustees recording decision-making on the appointment.
9. Once appointed, new Trustees are to be given induction and training that takes account of the Trustee’s level of experience and needs, so as to enable his/her effective performance.
(Note that the Charity Commission will also provide new Trustees with official guidance to ensure Trustees are fully aware of their role, responsibilities and liabilities).
The Rules That Apply
The Rules are and must be in accordance with MPS’s Constitution, UK legal & regulatory requirements, and decisions by Trustees following Charity Commission guidance ‘Trustee Board: People and Skills’.
1. New Trustees must be appointed by agreement between at least a majority of the current Trustees. The Constitution specifically requires that:
Apart from the first Trustees, every Trustee must be appointed for a term of 3 years by a resolution passed at a properly convened meeting of the Charity Trustees (Clause 10(1)).
NOTE that through Clause 13, Trustees have the power to take decisions outside of meetings by making resolutions in writing or electronic form; that Clause also sets out the relevant procedures.
2. MPS must at all times have a minimum of 3 Trustees, as per Clause 9(3)(a) and there can be a maximum of 11 Trustees, as per Clause 9(3)(b). Furthermore, at least one Trustee must be 18 years of age or over, as per Clause (9)(2)(d).
NOTE:
i. Where there should be fewer than 3 Trustees, Clause 9(3)(a) also enables the remaining Trustees to appoint new Trustees, so that the Charity does not become inoperable.
ii. Where a Trustee should submit a resignation and there are not sufficient Trustees left to make up a quorum, the Trustee would be deemed to be still holding office (Clause 12(1)(a)).
iii. Generally, the quorum for a meeting is 2 Trustees, or the number nearest to 1/3 of all Trustees, whichever is greater, as set out in Clause 15(3)(a).
Additional rules on Quorum: Note that the clause provides additional rules, including that Trustees may from time to time decide on a higher number as quorum. Furthermore, there are rules about not counting a Trustee as part of the quorum where the Trustee is not entitled to vote on a particular subject matter, for example in a case of conflict of interest.
3. In selecting individuals for appointment as Charity Trustees, consideration must be given to the skills and experience necessary to the effective administration of the Charity, as per Clause 10(2).
4. Candidates must understand the functions, duties and responsibilities of Charity Trustees, as set out in Clause 9(1). In summary this requires Trustees to:
a) Understand that all the rules and procedures for what the Charity and Trustees can legitimately do are set out in the Charity’s Constitution;
b) Make decisions in good faith that would be most likely to further the Charity’s purposes (in other words, Trustees must always act in the best interest of the Charity and not let their personal interests, views or prejudices affect their conduct as Trustee);
c) Exercise such care and skill as is reasonable in the circumstances; and understand that what is reasonable takes account of any special knowledge or experience they have or purport to have, or are expected to have according to the business or profession in which they are operating, or of how easy it was in the circumstances to get advice;
d) Ensure that the Charity’s income and property are used for the sole purposes set out in the Constitution;
e) Ensure they make decisions in line with the rules and procedures set out in the Constitution, including ensuring they declare any conflict of interest they might have in relation to a particular matter; and making sure that any Trustee who has a conflict of interest in regards to a particular matter is excluded from discussions and decision-making on the matter.
f) Understand that they won’t be liable where they act lawfully, responsibly and reasonably, followed the rules in the Constitution and taken reasonable steps to manage risks. However, where Trustees should act illegally or not follow the Constitution, the Commission can take Trustees to court to recover from the Trustees any funds lost to the Charity/ spent outside of the powers, rules and objects of the Constitution.
5. The basic eligibility criteria for becoming a Trustee must be met (See Clause 9(2)). Essentially, a candidate must:
a) Be an individual (as opposed to an organisation);
b) Be over the age of 16;
c) Not have been disqualified from acting as Trustee by virtue of sections 178-180 of the Charities Act 2011 (or any statutory re-enactment or modification);
(For example, the candidate must:
Not have an unspent conviction for an offence involving dishonesty or deception;
Not be currently declared bankrupt (or is subject to bankruptcy restrictions or an interim order) nor have an individual voluntary agreement with creditors;
Not be someone disqualified from being a company director;
Not have been removed as a Trustee by either the Commission or the High Court due to misconduct or mismanagement.)
6. A Trustee who has already served 3 consecutive terms cannot be re-appointed for a 4th term, unless there has been an interval of at least 1 year since the last (See Clause 12(3)).
7. Before being able to act as Trustee, a candidate who has been appointed as Trustee must expressly acknowledge his or her acceptance of the office of Trustee, as per Clause 9(2), and by completing and signing and dating the Trustee Eligibility Declaration form by Charity Commission for England and Wales. (This also ensures checks on basic eligibility at para 5 above).
8. A majority of the Trustees must be residents of England & Wales in order to ensure that the Charity qualifies under the jurisdiction of the U.K. High Court.
Otherwise, Trustees may be citizens or residents of the UK, +Montserrat+, US, Canada, the Caribbean, or British citizens who live abroad, and provided they have demonstrable connections and interest in Montserrat and the Objects and purpose of the Charity.
(+Unfortunately, appointment of resident Montserratians as TRUSTEE is currently restricted, because the Bank determined that certification of ID & address would not meet its standard requirements.)
