A board member can hold two positions

Change in board position - an organizational question

Hans-Jörg Kefeder / RA, Ganderkesee

 

Green Series -Bundesverband Deutscher Gartenfreunde e.V. No. 188 (October 2006)

 

I. Selection - preparation for the change

II. Election preparation - election implementation

·       Agenda

III. Elections and evaluation of the elections

1.    Legal basis for election and voting

2.    Statute requirements for elections and votes

3.    How are votes to be counted, what is meant by majority?

4.    Types of voting

5.    Declaration of acceptance

6.    Election protocol

IV. Handover of business - familiarization

1.    Time of handover

2.    Significance of the discharge of the board

3.     Publication of the association's documents

4.     Registration of changes in the board of directors to the register of associations

V. training

VI. further education

VII. Distribution of tasks and delegation

1.     Task sharing

2.    Transfer or delegation of tasks to third parties

VIII. Final remark

 

 

Depending on the rhythm of the statutes of the association or association, elections in the association take place annually, every two years, or at larger or smaller intervals, and there are therefore frequent changes in the board office. Since our clubs and associations are regularly headed by more than one board member, the boards are even divided into executive and other board members, they regularly consist of 4, mostly even 8, in the regional associations even more members and the federal association even of 10 executive board members, it comes frequently to personnel changes in the composition of these board members.

 

This is a good thing because with every person who takes on an office responsibly, new ideas, but above all impulses, are taken up that advance the work of the board and thus also change the way the association is presented internally and externally and often improve it .

 

In the following, the legal framework of the change is presented, but an attempt is also made to give practical tips and suggestions on how to prepare and implement these changes.

The following illustration refers to registered associations. For unregistered associations you will have to pay attention to special features (e.g. no obligation to enter the change in the board of directors in the association register). Nevertheless, many references should be useful accordingly.

 

to the table of contents

I. Selection - preparation for the change

 

Most of the time, long before the general assembly, when the election decisions are pending, it becomes clear that individual members of the board are leaving for various reasons and have to be replaced by others. Ideally, the board of directors should not have any hesitation in looking in advance from among the members of the association or federation in question for personalities whom it deems suitable to cope with the tasks of the departing member. Nothing is more paralyzing for the course of a general meeting than the unprepared question: "Who wants or is ready to become chairman, etc.?" Usually nobody answers, even if those present are addressed personally. Often the answer is: "I have I don't have time ".

 

Does the new board member actually have to meet any requirements? The statutes can stipulate which personal requirements the board members must meet. If it does not contain any special regulation and does not conflict with its meaning and purpose, even non-members, even with limited legal capacity, can be members of the board with the consent of the legal representative and legal person. If the statutes require certain prerequisites for the office, in case of doubt it is sufficient if these exist at the time of taking office. A personal union between several board positions is also permissible without an express statutory basis (cf. Heinrichs in Palandt, § 26 BGB Rd-Nr. 4 BGB (62nd edition)).

 

 

In the statutes of allotment gardeners' organizations, there are usually no personal qualification requirements. Then every full member of an association who is of legal age can take on a task on the board. Even with larger clubs, it is not a requirement that you have a certain qualification or at least a school education.

 

Nevertheless, it makes sense to try to fill the board with people who have a school education as well as qualified professional training. The requirements placed on a board of directors today, be it from the tax authorities, be it in dealing with the lessor of the allotment garden complex or in dealing with the administration of the municipality in which the complex is located, presupposes that these persons are in are able to stand up for the association and be able to deal with these institutions professionally and objectively correctly.

 

The ideal board member should look like this:

-          Master craftsman

-          Accountant, better business economist

-          Lawyer with at least 1 legal state examination and 5 years of professional experience

-          Social worker

-          psychologist

-          Trained mediator

-          Computer specialist

-          etc.

 

Nobody will combine the aforementioned properties. You might also be exaggerated for handling the office of chairman of a KGV. From the description, however, it becomes clear that the chairman and the other board members should already have certain knowledge, ideally also experience from club activities and club life and also have professional experience.

 

Of course, it is the exception that at the time a board member is elected, he or she already has the relevant professional and personal requirements. It is even more seldom that all members of a board of directors with several members also meet the requirements expected for their position to the highest degree. But I do not consider this to be harmful either. A board of directors must and will develop in the course of its activity. The new members have to familiarize themselves and sometimes have to get to know the position they will hold after the election.

 

The individual board member should be expected to be able to convey the meaning of board decisions to the members of his association. It takes a good degree of persuasiveness, which in any case is always above the requirement of just announcing a resolution. The more secrets the board keeps about its decisions to the members, the less it will be understood by them. This makes it all the more difficult for him to enforce unpleasant decisions, such as the dismantling of an illegally built extension.

 

With the selection of the relevant board members in advance, of course, the new formation of the board is not completed. Of course, every member at a meeting is free to run for a position on the board or to propose another member. The meeting leader should even encourage those present to do so. It is foolish for the chairman of the meeting to sit down at a meeting and comment on the candidacy of a member against a proposal that has already been made. The chairman of the meeting in particular should make voting decisions as neutral as possible.

 

If several candidates are trying to hold the same position on the board of directors, each candidate should be given the opportunity to introduce themselves to the meeting. This even if they are already known. How much the individual makes of it is up to him. Questions about the person should also be allowed.

 

to the table of contents

II. Election preparation - election implementation

 

The correctly conducted election begins with the invitation to the election meeting, which regularly takes up one or more items on the agenda at the general meeting. As always, it is necessary to first take a look at the articles of association. At least the deadline to be observed when summoning the meeting will be mentioned there.

In the agenda with which the general meeting is invited, these should then be precisely described, depending on how many board positions are available for election. It can look like this:

 

Agenda

1.                     Opening and greeting

2.                     Determination of the quorum

3.                     Election of a mandate and electoral review committee

4.                     Election of a meeting leader

5.                     Report of the Board of Directors

6.                     Auditor's report

7.                     Discharge of the board

8.                     Election of the board of directors

a) Choice of l. Chairman

b) Election of the deputy chairman

c) Choice of a cashier

d) Election of a secretary

e) Choice of an expert advisor

9.                     etc.

10.                 etc.

11.                 Election of the delegates

12.                 Requests

13.                 etc.

Formulating the agenda as comprehensively as possible helps the chairman of the meeting. He can work through the agenda point by point and will hardly forget anything important.

 

to the table of contents

III. Elections and evaluation of the elections

 

Questions that arise frequently at the meeting, such as abstentions or invalid votes or other voting behavior in a vote, should be clarified when preparing the meeting. Questions also arise as to whether entire board members can be elected in a block, when secret elections are necessary and whether ballot papers prepared by the board can be used.

 

1.                     Legal basis for election and voting

Elections and votes in the association have the same legal basis. Therefore, counting and evaluating votes in elections and voting is essentially the same. This results from §§ 27, 32, 33 BGB.

 

Section 27 of the German Civil Code regulates the appointment of the board of directors. In § 27 Abs. 1 BGB it says:

"The appointment of the board takes place by resolution of the general meeting."

 

Election decisions are resolutions of the general assembly (BGH NJW 1989, 1212). Resolutions of the general assembly are made according to § | 32 and 33 BGB (the latter regulates the qualified majority). For clarification, § 32 BGB should be quoted here.

 

§ 32 BGB

(1) The affairs of the association, insofar as they are not to be dealt with by the executive committee or another organ of the association, are settled by resolution in a meeting of the members.

In order for the resolution to be valid, it is necessary that the subject matter is identified on appeal. The majority of the members present decides when the resolutions are passed.

(2) Even without a meeting of the members, a resolution is valid if all members declare their consent to the resolution in writing. "

 

From this, the Federal Court of Justice (BGH) has developed some principles for voting on how and what is counted:

 

In principle, each member only has one vote. This applies in any case to member clubs that are not members of clubs or associations, but predominantly natural persons. Minors can also vote if their custodians have given their consent to the vote when they join the association. But this is difficult to check. It can therefore be assumed that minors or other non-legally competent members of the association cannot vote. Your vote is void.

 

After it has long been disputed what a majority is, the Federal Court of Justice has decided in principle, that one is under a majority (Unless otherwise stated in the articles of association, such as an absolute majority or simple majority) understands the majority of valid votes cast (So ​​since the decision of the Federal Court of Justice in 1982 in BGHZ 85, 35 = NJW 1982, 1585).

 

In order to answer the questions raised in this way specifically for my club, first of all there is again a It is necessary to have a look at the statutes of the allotment gardening association or association. The exact voting behavior can be agreed in the articles of association, which deviates from the statutory regulation.

The legal majority shown above essentially also means what is known as a relative majority.

 

In summary:

1.                  Whoever has the most votes is elected.

2.                  Invalid votes are not counted, not even among the no votes.

3.                  Abstentions are also not counted, not even in the case of no votes. The BGH has expressly decided this and in its reasoning referred to the fact that the person who wants to abstain is undecided and does not want to say yes or no, both to a decision and to an election.

 

to the table of contents

 

2.                     Statute requirements for elections and votes

 

Often, however, the statutes contain the following provisions regarding elections and votes that deviate from the law:

 

“When passing resolutions, the number of members present must always be taken as a basis.

Members who abstain from voting or who submit invalid or incomplete ballot papers are not to be counted.

A simple majority is understood to mean a majority that is one vote more than half of the valid votes.

The same procedure is used to calculate the 2/3, 3/4 or 4/5 majority.

If the above majorities are not achieved (e.g. equality of votes), the application is deemed rejected or the election not carried out.

 

Resolution on applications:

The organs decide on motions with a simple majority of votes.

 

Board elections

The members of the board are elected in individual ballots with a majority of votes. "

 

These requirements must be observed when elections and votes are to be held. For this reason, the other counting specifications are also presented below.

 

to the table of contents

 

3.                     How are votes to be counted, what is meant by majority?

First of all, a distinction must be made between the various types of majorities listed here

 

a) Qualified majority

A qualified majority is a majority of votes that is greater than the simple majority of votes (e.g. 2/3, 3/4, 4/5 majority). It is regularly requested when changes are made to the articles of association. In order to pass an effective resolution in this respect, the majority of votes provided for in the articles of association must be achieved by corresponding yes votes. If, for example, the statutes provide for a qualified majority of 3/4 of the members present for the amendment of the statutes, at least 75 members of the 100 present must have approved the application.

 

b) Simple majority of votes

A simple majority of votes means that the resolution has been accepted or the person who has received more than half of the (valid) votes cast has been elected. If this majority is not achieved, the election or vote is repeated once or twice. This means that the resolution is only accepted or the candidate is only elected if he or she has received more than 50% of the votes cast. Continuing with our above example, this would mean for the election that candidate A, who received 51 votes, is elected if 100 members took part in the vote. He would not have been elected with 45 votes if Candidate B had 30 votes and Candidate C had 25 votes. A new election would have to be carried out here.

 

c) Relative majority of votes

The relative majority of votes can lag behind the simple majority of votes. It is often found in the statutes when it comes to personnel decisions among several candidates. It is expressed by the following formulation: "Elected is whoever has the most votes."

It is also to be used if the statutes do not provide a regulation contains.

 

The relative majority of votes means that the person who has the most votes is elected.

In our previous example, the candidate who won 45 votes would have been elected in the first ballot.

Or the example a little differently: With 100 voting members present, 7 members abstained, 3 members cast invalid votes, 39 members for candidate A, 31 members for candidate B and 20 members for candidate C.

 

It should be noted, however, that only those who accept the election are elected. If he rejects the acceptance, then the applicant with the second-best number of votes is not chosen. In this case the election would have to be repeated. If the statutes do not provide for a simple majority, candidate A is elected.

 

to the table of contents

 

4.                     Types of voting

As can be seen from the legal text (Section 32 (2) BGB), a resolution or the election of individual members of the board of directors or of the entire board of directors can also be made in writing. This does not mean the election at a general assembly, but the election independently of a corresponding assembly. This must be provided for in the statutes and the consent of all members is also required, provided that the statutes do not require any other majorities.

 

Different formulations are - also as combinations - possible in the statutes.In the case of elections, however, this should not be practicable, since those who want to cast their vote in writing on a voting decision that takes place at a general meeting can of course not overlook whether the general meeting itself will find other candidates who have to be voted on. Elections should therefore always take place at meetings.

 

Secret / open vote (election): The statutes or the rules of the meeting indicate whether the candidates will be voted openly or secretly. In the absence of such a regulation, open voting is in any case harmless if no meeting participant objects. If there are several candidates, they should be voted on in the order of the suggestions received.

 

In the case of secret elections, the voting process must be designed in such a way that it remains unknown to third parties which voting decision the person entitled to vote has made. It is sufficient to ensure that every voter can conceal his voting slip and mark it before other people can inspect it.

 

It is quite controversial whether the request of a member of the assembly for a secret vote must be complied with. There is no legal rule stating that voting must be done secretly at the request of one or more members (see BGH NJW 1970, 46). Nevertheless, it is democratic to proceed in such a way that a fair and democratic election can only come about if the election is carried out secretly at the request of a member. The member who makes such a request should not be asked why. They may not be able to comment on why they do not want to vote the candidate. Nobody is obliged to give reasons for their voting decision. Such a justification would be required, however, if one were to make the approval of the election procedure dependent on a substantive declaration.

 

Pre-made ballot papers: It is not only possible, but even useful, to prepare the board elections for the case of a secret or written election with ready-made voting slips. These ballot papers should be recognizable as they are stamped with the club and, if necessary, numbered. This is to ensure that everyone only casts one vote per candidate or resolution and does not make the election invalid by placing inadmissible additional ballot papers on the market.

 

One or more candidates who have already announced their candidacy in advance can also be listed on such ballot papers. However, there should be an opportunity to write other candidates on this ballot, as far as they can be found in the course of the meeting. When counting the votes, care must be taken that only one vote is cast, unless it is a block election by the board of directors. Only here are special features.

 

Group, collective or block election of the board:

In principle, the board of directors can vote in blocks if the statutes do not expressly prohibit this. It is possible to elect the entire board in one ballot (this will only be possible in writing because of the counting of votes). Different "blocks" can compete against each other, for example if the chairman A with the deputy B, the secretary C and the cashier D against the group around the board candidate W, the deputy candidate X, the secretary Y and the secretary Z on one Candidate lists against each other, but this is likely to be rather unusual in allotment gardening associations.

 

Occasionally, however, the election of the entire board by means of a voting process on a ballot paper could occur. In these group elections, sometimes also known as collective elections or moderate block voting, each member entitled to vote must have at least as many votes as there are board positions to be assigned. In the so-called moderate block voting system, in order to cast a valid ballot, voters must distribute at least half of their votes to the existing candidates. He cannot give a member several votes, but does not have to "use up" all of his votes. An example: The board consists of 8 members and should be elected using a moderate block voting system. Here, each member can cast a maximum of 8 votes, but must have at least 4 A valid vote would be counted if the member had given one vote to the 1st chairman, the 2nd chairman, the assessor and the adviser to be elected, but did not use the other 4 votes.

 

The ballot would also have to be counted if 8 of the 12 candidates had each received one vote from the member.

The ballot would not count if the chairman 2, the cashier 2 and the two secretaries each had one vote. This ballot would be invalid. En-bloc voting is often quite complicated. It is easy to make mistakes when counting. But it is not infrequently used in associations. A lot of tactical variations are also possible here in order to achieve certain composition of the board of directors.

 

The treatment of the election and voting offers many other variations, which can be found in the relevant literature on association law. The above statements essentially relate to the practice known in allotment gardening associations.

It is important, and this cannot be emphasized often enough, to always first take a look at the articles of association to answer the questions raised. Often more is regulated in the statutes than is known from one's own, sometimes longstanding practice.

 

to the table of contents

 

5.                     Declaration of acceptance

After each type of election, it is imperative to ask the person or persons elected, specifically to each individual, whether he / she accepts the election. With the declaration clearly and to be recorded, the elected person submits a declaration of intent with which he concludes a contract with the association, which is regarded as an order according to §§ 664 ff BGB and which is determined, among other things, from the paragraphs listed there.

 

 

6.                     Election protocol

Of course, as for the entire assembly, minutes must be drawn up about the election. The minutes should contain the following items on the agenda. The voting decisions can be specifically recorded and either incorporated into the minutes or attached as an appendix. If the vote was made in writing, the ballot papers should be kept.

 

A log should contain:

 

1.                     Place, day and hour of the meeting;

2.                     The names of the chairman of the meeting and the secretary;

3.                     The number of members who appeared;

4.                     The determination that the meeting was called in accordance with the statutes;

5.                     The agenda, stating that it was communicated when the meeting was called;

6.                     The determination that the meeting has a quorum (e.g. if the articles of association contain special provisions on the quorum - majorities, etc.);

7.                     The applications made

8.                     The type of vote (written, shouted, show of hands)

9.                     The exact voting result (yes-votes, no-votes, invalid votes, abstentions)

10.                 In the case of elections, the exact personal details of the elected, their address and, if so, the declaration that they will accept the election;

11.                 The signature of the keeper of the minutes and the other persons named in the articles of association,

 

See also an election-only protocol in which a relative majority was assumed.

 

to the table of contents

IV. Handover of business - familiarization

 

1) Time of handover

At what point in time after the election of individual members of the board or of the entire board, the business is to be handed over, depends on the statutes.

This initially depends on when the executive office ends or the new one begins. The term of office of a board member is not regulated by law. There is also no requirement that the articles of association contain such a regulation. As a rule, however, the statutes provide for corresponding regulations. Unless otherwise stipulated in the articles of association, the term of office begins with the acceptance of the appointment (election). A variety of designs are possible here. It will be said that the term of office begins after the meeting at which the board member or board member has been elected, i.e. the newly elected board is from this point in time and not only from the point in time when the change in the board is entered in the register of associations Office and thus authorized body to represent the association within the meaning of Section 26 of the German Civil Code (BGB).

 

This is different with changes to the statutes. They only become effective when they are entered in the register of associations (Section 71, Paragraph 1, Clause 1 of the German Civil Code).

 

to the table of contents

 

2) Significance of the discharge of the board

For the obligation to hand over the business of the association to the successor is again to the

To remember the importance of the discharge of the board at the general meeting.

 

For the term of office of the board of directors of the individual board members, the provisions on the contractual relationship according to §§ 664 - 670 BGB apply regularly. According to this, the board of directors has the mandate from the general assembly to manage the business of the association in accordance with the requirements of the general assembly. He must provide information at any time upon request to the general assembly and give an account after the termination of his office (§ 666 BGB). After completing his assignment, he has to surrender everything he has received to carry out the assignment and whatever he has obtained for business support (§ 667 BGB).

 

With the end of the term of office of the board, the discharge of the board takes place regularly, mostly at the general meeting. The discharge of the board has the effect of a waiver by the association of claims for enrichment and damages (BGHZ 97,382 gl.NJW 1986,2250 etc.), which are known to the general meeting or could have been known after careful examination. So that the board can be discharged, it is of course necessary that the work of the board is reported. This is done regularly in the so-called statement of accounts. This means that the contractual relationship ends formally with the consequence that anyone who does not receive a new assignment through re-election has to surrender everything that he has received from the association for his work immediately after the termination of his contractual relationship with the association.

 

to the table of contents

 

3) Handover of the association's documents

What exactly belongs to this is certainly very different from club to club, because some clubs have their own offices to keep their own documents there; others have to leave most of the documents personally with the board members.

 

In principle, all items and rights that the agent has received from third parties as a result of the agency, i.e. in connection with it and, if applicable, also after the termination of the contractual relationship, are the files and documents that the agent created for the management or within the framework of them has obtained to surrender to the association. For example, the cashier has to hand over the business books even if he has created them himself and created files. The secretary must hand over all correspondence, from the minutes he may have collected at home to the correspondence or other lists, even if he wrote them on his own computer at home.

 

It is important that powers of attorney issued in writing are also returned. As a rule, the authorization ends with the termination of the office, especially here the order, or is expressly revoked by the client, i.e. the general meeting. However, if there are written powers of attorney in circulation, e.g. because the cashier was able to dispose of the bank account or a specific board member has been given power of attorney for specific tasks, these powers of attorney should be reclaimed. Most of the time, the cashier has a bank power of attorney, which is set out there in writing; it must be revoked by the bank as soon as possible after the end of the office. Otherwise, legal transactions could come into effect against the association because the business partner who concludes a contract with reference to such a power of attorney can invoke the protection of legitimate expectations (proxy or tolerance of tolerance).

 

Using the example of the cashier, it should be shown what a handover protocol should look like when documents are handed over. This must be carried out formally correctly between the submitting party and the (new) board of directors of the association authorized to represent.

 

to the table of contents

 

Takeover protocol

 

Between the

Mr. Frank Gartenfreund, Sonnenscheinstrasse 5, 27753 Delmenhorst,

- former cashier -

and the allotment gardeners association Abendfrieden, represented by d.d. Chairman (name, address) and the second chairman (name, address)

the following takeover agreement is affected:

The former cashier presented the following documents from the association, which were previously in his possession:

Savings book at Sparkasse xy, account no. ...., Bank balance:....

Account card for the bank giro account ...., sort code ...., account no ....

Credit card for checking account Bank ..., bank code ..., account no. ... PIN number for account no. ...., bank code ...., TAN number list for account no. ... ., Bank code ..., account statements for the years .............

last account balance on account no ...., bank code ...., EURO ....

... folder with invoices and lifting lists

... folder with reminders, court judgments, enforcement orders, etc. for the period of7995 to

2006

... folder with correspondence from the period 7995 until 2006

Original software of the allotment management program

A cassette with cash in the amount of EURO ...

Other documents:....

 

The handing over cashier confirms that he has thereby given over all documents cash and other assets of the association from his possession.

 

The representatives of the association confirm that the documents are complete. The account balances match the information. The cash amount is received.

 

Delmenhorst, the ......

 

 

The next thing to consider is whether the account details need to be changed. If there is suspicion that the former cashier could still have access to the account, the account details (PI (\ Ts andTAI \ Ts) must of course be changed.

 

A similar protocol could also be formulated with regard to the documents that the secretary kept or that other board members have taken possession of for the association. There are only a few formal requirements to be observed (specify the publisher and association representative). In any case, it is important that it is stated that the documents are described precisely so that confusion or cases of doubt are avoided and the completeness of the documents submitted is expressed as far as possible.