Co-option to committees
The issues
It is common practice to co-opt people to join committees or sub-committees of societies or trusts, and a well-drawn constitution should make clear the powers and responsibilities of such co-opted people. Co-option is a term used to indicate that someone from outside a group may be included in the group, either by the group or by the entity that established the group originally. When co-option is being considered a number of issues need to be considered, as discussed below.
Is there power to co-opt?
Any powers of co-option are usually specified in an entity’s constitution if co-option is contemplated by the entity. If an unlimited power of co-option did exist, for instance, the co-opted people could exceed in number (and therefore out-vote) the duly appointed or elected trustees or committee members, and that might be argued to be contrary to the expectations of those who approved the constitution. While trustees and committees have wide powers of governance (either express or implied), in the absence of a specific power to co-opt my view is that they have no power, in effect, to add to their number. To do that should require appointment of new trustees (in the case of a trust) or having additional committee members elected (if a society). There is authority that indicates that co-option in the absence of a power to co-opt is unconstitutional (Skipworth-Halatau v Ngati Kapo (Aotearoa) Inc, Employment Court, Auckland Registry, AEC72/98 A85/97, and Andricciola v Italian Community of Keilor Association Incorporated [1996] 1 VR 421 at 433).
Who may be co-opted?
If powers of co-option can be exercised, it is usual for the entity’s constitution to specify this and to specify whether the person co-opted needs to be a member of the entity. Thus, with a trust, the trust deed might say that a subcommittee of trustees may co-opt another trustee, or may co-opt someone who is not a trustee. With societies, I would usually expect to see a rule saying that the committee or a sub-committee may co-opt some other member of the society, but occasionally co-option of non-members will be specifically authorised, especially if they have particular expertise.
Why co-opt?
If co-option is being considered it may be because certain expertise is required, or because committee numbers are short for some reason (for instance, because of resignations or death, because of the prolonged absence of a member, or because a particular project requires specialist expertise or a greater number of people to be involved in its planning and execution). Before any decision is made on co-option, other options should be considered; such as seeking a report from someone with the required expertise or engaging their services as an external expert. Factors favouring co-option may include the benefit of having additional people involved in the dynamics of the committee’s investigations and deliberations, and gaining access to expertise without having to pay for it.
Term of the co-option
How long is a co-opted member to be part of the committee or sub-committee? If the co-option is related to the prolonged absence of a member or to a project that would suggest a term limited to the period of absence or during which the project runs. Unless otherwise stated, the term would normally be regarded as extending for at the least the period during which the committee or sub-committee exists (thus, a member co-opted to an elected committee would cease to be a member when the replacement committee is elected).
Responsibilities of the co-opted person
Is the co-opted person expected to attend all meetings of the committee to which he or she is co-opted and to undertake all the responsibilities of other members of that committee? Again, in principle, if such responsibilities are not defined or limited, I consider that the co-opted person has the same responsibilities as other members of the committee.
Powers of the co-opted person
Is the co-opted person to have full speaking and voting rights? Co-opted people will usually feel disempowered unless they enjoy speaking and voting rights. If such rights are not defined, in principle, I believe that the co-opted person should be regarded as having full speaking and voting rights. Co-option may be seen, in some ways, as involving the co-opted person as a delegate of the body which co-opted that person. While a society may act through agents and individual officers, trustees have a general duty not to delegate their duties or powers (see Niak v Macdonald [2001] 3 NZLR 334 (CA) for an illustration of this principle), subject to exceptions including an express power to delegate conferred by the trust instrument of by statute (such as ss 29 and 31, Trustee Act 1956).
Conclusion
I was prompted to write this article by someone who contacted me asking about a rule which provided that “The elected Committee shall have the power to co-opt members to fulfil specific functions such as xxx, yyy, etc.” Such a rule suggested to me that:
- The purpose of co-option was to fulfil specific tasks, not for the co-opted people to be members of the committee (but the full context provided by all the Rules might have modified my conclusion),
- While the quoted rule referred to co-opting “members” I read that as being a reference to members of the society, and not as a reference to members of the committee being co-opted,
- Further, if people are co-opted “to fulfil specific functions” then it appears that that is all they can be co-opted to do, and not to be members of the committee, and
- Therefore, on that wording those co-opted probably do not become committee members but rather just fulfil specific roles, and I am doubtful that the co-opted people would have voting rights.
A constitution may require amendment to place matters beyond doubt; illustrating the need for powers of co-option to be clear and to specify precisely who may be co-opted and the powers and functions of the co-opted person.
For specific advice about any of the issues discussed in this article, please contact Mark at mark@nfplaw.co.nz.