Our bylaws do not define a “member” and we have no membership fee. Is it ethical to just let all adult attendees at the upcoming annual general meeting vote? Or all volunteers? Should we let staff be members and vote? Help!

This is partly a legal question and I am not a lawyer, so this column cannot be taken as legal advice. I strongly suggest you engage a lawyer specializing in nonprofit law as soon as you can. If you do not have the funds, check for pro bono legal services in your community. Organizations like the United Way or a community foundation may be able to direct you. However, the question came to me and I will try to answer because letting this situation continue isn?t appropriate.

Where is membership defined?

Membership is usually considered a core, perhaps THE core, item of the bylaws. Leaving it out makes little sense. Re-read the document, including any supplementary bylaws, letters patent and supplementary letters patent to make sure the clauses weren?t just overlooked. Check also to see how voting was handled at prior AGMs; perhaps the minutes will answer your questions.

If not, check your governing statute if you are incorporated. For example, under the Ontario Corporations Act, the applicants for incorporation become automatic members. If no one else has been admitted to membership, I believe these remain your only members. They can admit others to membership at the start of your annual general meeting. If they are no longer involved or even alive, a lawyer is going to be even more important for sorting this out. And your governing statute may differ.

You are likely going to have to rewrite your bylaws soon anyway to address new federal or provincial legislation. Having this membership discussion now will greatly help your readiness for new bylaws.

If you are not incorporated, the board can define membership with a board motion in the form of a proposed bylaw amendment, to be ratified at the upcoming meeting of members. They can then begin accepting membership on that basis (starting with the directors).

If there is broad community involvement in the organization, which seems likely if there are numerous volunteers, remember that a narrow definition of membership is more likely to be challenged than a broad one. And if this is done in secret (which is possible if the board defines directors as the only members), it will inevitably become public, likely sooner than you think. There will then be a lot of anger directed towards the board.

Can membership be based on volunteering?

There is no requirement to have a fee for membership, so you could define it based on volunteer hours. Or you could also set a fee but waive it for volunteer service above some number of hours. That would allow non-volunteers to join and you probably need a broader membership for board recruitment and community engagement than just volunteers. For example, it is usually desirable to have clients/beneficiaries as members, and the skill sets for a board are not the same as for operational/service volunteers. The fee if any could be waived for current clients.

Can membership be based on AGM attendance?

I have never seen an organization define membership by who shows up, but if you think that?s the right approach for the nature and culture of your organization, I can?t tell you it?s wrong. I can tell you that if you are incorporated, you must maintain a list of members and other members have a right to see that list, so that attendance list will be your members until the next meeting of members. That means they could petition for a special meeting, for example, and would have to be notified of the next members? meeting.

Can staff join?

While some would tell you staff should never be members, there are organizations where keeping members out of staff roles would be inappropriate. For example, in sports’ governing bodies, there are staff positions requiring technical knowledge and it is a major advantage to have staff who are or have been active in the sport. Membership may be required for them to continue their involvement in competition, coaching or officiating outside of working hours. However, having staff vote for their own bosses does not seem right to me.

Also, governance consultants and academics generally consider it very unwise to have staff governing their own organization. Role clarity becomes impossible and accountability is very difficult. Relationships with the senior staff person become quite awkward when people who report to them are doing their performance evaluation and determining their compensation. Staff members on a board may evaluate the executive director based on how happy they are with their personal workload or position rather than on organizational results.

Demands for staff involvement on a board usually stem from dreadfully poor board communications and lack of transparency on the part of the board. Those deficiencies can be fixed with better communications, open meetings and making minutes public.

If you want to allow staff members to join, I suggest having terms of employment that allow staff to join and take advantage of all member benefits except the right to vote or stand for election to the board.

Summary

Overall, you have done well to identify an urgent problem. Now you have some options for how to go about resolving a situation that shouldn?t be allowed to continue. Don?t forget the need for legal advice.

I wrote more on membership types in my June 2009 column.

Since 1992, Jane Garthson has dedicated her consulting and training business to creating better futures for our communities and organizations through values-based leadership. She is a respected international voice on governance, strategic thinking and ethics. Jane can be reached at jane@garthsonleadership.ca.

To submit a dilemma for a future column, or to comment on a previous one, please contact editor@charityvillage.com. For paid professional advice about an urgent or complex situation, contact Jane directly.

Disclaimer: This article is for information purposes only. It is not intended to be legal advice. You should not act or abstain from acting based upon such information without first consulting a legal professional.

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