Voting by email with abstentions taken as "for".

I'm a governor in a LA comprehensive.
This relates to the co-option of a member of staff as governor alonside the Head and the elected staff governor but is becoming a normalised proceedure for voting outside full governors meetings. (There are 9 governors).
My concern is the chair deciding that abstentions etc indicate agreement.
Here is that part of the email; However, as previously, I would request you note that any ‘non reply’ will be considered to mean that you agree.
Does anyone else have this sort of procedure in their governing body?
To my reading, it doesn't follow regulations but I'm open to corrections.
Thanks.

 

@Rott Weiler is your person to answer this.

 

Oh, imagine the furore if this were applied to brexit......

 

The procedure cannot be legally used by the Governing Body of an LA maintained school.

The procedure that GBs must comply with is the School Governance (Roles, Procedures and Allowances) (England) Regulations 2013, specifically paragraph 14.

Para 14 (3) states that GB decisons can only be made by the votes of governors "present" at the meeting. Physically present, in the room. Para 14 (6) provides some flexibility for governors to be deemed to be "present": "...the governing body may approve alternative arrangements for governors to participate or vote at meetings of the governing body including but not limited to by telephone or video conference".

I have come across cases where GBs have decided that para 14 (6) meant they could have email voting by people not at the meeting but the DfE guidance on para 14 makes clear this is not acceptable: see page 9 of the guidance here. "... voting in advance of a meeting is not permitted. It is important that governors are present to hear and engage in the debate before casting their vote."

In any event it is not a decision the Chair has the power to take. Para 14 (6) requires any decision to use 'alternative voting arrangements' to be a formal decision of the governing body and minuted as such.

And frankly the idea that abstentions in any voting system can be deemed to be a vote in favour is so obviously unreasonable and undemocratic in any public body I'm astonished that any governor would think that was OK. But the point is academic as email voting is not permitted anyway.

Where was your Clerk in all this? A key responsibility of the Clerk is to give procedural advice. If your Clerk did not advise governors that the proposed voting procedure was not permitted by Regulations the Clerk is manifestly not doing their job properly.

 

Many thanks Rott Weiler, that is my interpretation of the rules, but having been shouted down by the chair quoting advice from the LA support team I felt the need to check outside that circle.

 

That comment has had me chuckling for hours tonight.

 

Rott Weiler, you may be interested to know that the Key for School Governors are advising their members that voting by email is possible which may be where some of these boards are getting the idea from. (I also checked this with the NGA and they agree with you and say email voting is never permitted.) But this is what the Key say:

"You can vote by email, sometimes
A governor can cast their vote by email, but only if they were 'present' for the meeting on the matter.

For example, a governor might want to send in a vote by email when:

• They need time for consideration: where governors request time to think about their vote, they can go away from the meeting and then cast their votes via email."

So no voting in ADVANCE of a meeting, but the Key think governors can go home and email in a vote after the meeting has happened. They say they have confirmed this with the DfE and also state that the Dfe guidance "says that members must be present in a meeting in order to vote but the advice doesn't say that the vote must be taken at a meeting. There's a distinction."

 

Interesting, I hadn't come across that before. It's quite a legalistic interpretation but I can see how the Regulations could be interpreted that way. It would presumably be a vote that complied with para 14 (3) and doesn't need the GB to agree 'alternative arrangements' under 14 (6). Although in OP's case I don't think that was happening. I read it that the Chair was soliciting votes by email from members who not been present at any meeting where Co-option was discussed.

What that interpretation doesn't do of course is support the Chair's contention in the OP that abstentions can be deemed a vote in favour.

 

I confirm that no discussion of this co-option had taken place at the FGM held a week before the votes by email were solicited by the chair. However, at that FGM I had questioned this new tactic of decisions and votes by email outside the termly Full Governors Meetings after another Governor had been previously been co-opted (May 2019) by the same method including my abstention being counted as a vote for that co-option and despite my argument that I had never met the person and knew nothing about them. The chair and clerk asserted that they had been told by LA Governor Services that this was within the regulations. Maybe the LA have misinterpreted the the information provided by The Key. I shall email Governor Services with the pertinent questions.
Once again, many thanks for the input to this discussion.

 

Hear hear,!

 

Unfortunately the clerk never advises on proceedure but simply takes minutes and acts as a nodding dog for the chair. In fact the clerk is rarely if ever consulted by the chair and hardly ever speaks.
In addition, LA have just confirmed all the advice given on this post is correct.