Sunday, December 20, 2009

Governance of Charities


Standards of Governance for Charitable Companies in Anguilla
By Don Mitchell CBE QC, of the Anguilla Legal Aid Clinic
When we are examining the governance of a charitable entity in Anguilla, we look at two things.
The first consists of the legal rules that govern charitable entities. The second consists of internationally recognised standards that are not found in any Act or law. In Anguilla, charitable entities may be incorporated in one of two ways. The first is by registration as a not for profit company under the Companies Act. The second is by registration under the Friendly Societies Act.
Registration under the Companies Act may, in my opinion, be briefly described as the rich man’s incorporation, and registration under the Friendly Societies Act as the poor man’s incorporation. They are both of ancient lineage, Friendly Societies being perhaps more modern, having been created by law in the Leeward Islands only in the 1920s.
The legal rules may be found in two places. The first is in the company’s constitution or by-laws. The second is in the Companies Act and Regulations or in the Friendly Societies Act and Regulations, whichever is relevant.
1. Companies Act:  The Act permits a not-for-profit company to be incorporated either as a private or a public company. It is not necessary to go into all the law and regulations that govern such a company, since the Board of directors of any such company will ensure that it recruits an attorney at law, preferably on a pro-bono basis, to sit attend board meetings and annual general meetings, and to advise on compliance with the law and the regulations. This is important as the regulation and governance of a company is not to be left to chance. There are many attorneys at law in Anguilla who would welcome being invited to participate, as if there is one thing that an attorney can contribute to any voluntary, charitable project, is his or her learning and experience at the law.
Why would one want to incorporate a not for profit company in Anguilla?  In Europe or in America, one of the principal reasons has to do with income tax. Companies in those countries pay income tax on their income, and there may be other types of tax applicable. A registered charity, on the other hand, is exempt from tax. Company tax can be quite oppressive, and if a company is dedicated to charitable purposes, it makes sense to incorporate as either a not for profit company or some other recognised charitable corporation such as a Friendly Society, which is similarly exempt from income tax. This does not make any sense in Anguilla, since no person or company pays tax of any kind on any income. The Anguilla government derives all its income from duties, licences, and other forms of ‘indirect taxation’.
Another reason has to do with the advantages of limited liability conferred by incorporation. A club that is not incorporated leaves its members and officers open to legal action if the club does anything to cause damage or injury to someone. Incorporation protects the members, officers and donors to the entity. That is why incorporation is one of the requirements of international funding agencies. An overseas agency that gives money to an Anguillian charity will be concerned that if the Anguillian charity commits a tort or wrong that causes the charity to be sued by someone who has been damaged or injured, the claimant will want to add to the claim any overseas agency that has funded the activity that gave rise to the alleged damage. The members, directors and funders of a company, Friendly Society, or other institution possessing limited liability, are not responsible for the wrongs of the company of which they are members. By injecting a limited liability entity between the funding agency and the charitable company, a degree of comfort and security is provided to the funding agency. One will frequently find that funding agencies will not contribute to the programmes of charitable groups that they want to support unless and until they incorporate themselves. Either a company or a Friendly Society will do.
Unlike in the UK and the USA, regulation of a charitable company is minimal, unless it is registered as a public company. The Attorney-General is at common law the ‘public trustee’ with oversight of registered charities, whether companies or not. However, as there is no income tax in Anguilla, there has never been any need nor any call for charitable institutions to be registered with the Attorney-General, or with anybody else for that matter. That means that charitable companies are essentially unregulated in Anguilla, which is not a good thing, as it can lead to abuse that may not be discovered until several years of wrongdoing have passed.
One of the reasons for the lax attitude of the Companies Act and the authorities to the management of charitable companies in Anguilla is the underlying philosophy of the Act. The Act places a heavy burden on “registered agents” to ensure that the companies they represent comply with the law and the regulations. If they are careless and permit ‘their’ companies to act in breach of the law, they can incur heavy penalties including loss of their registration as a ‘company agent”. Since there are no special regulations governing charitable companies, company agents that are not an attorney at law or a certified accountant, will not be able to assist a charitable company, or Friendly Society for that matter, to comply with the general law and standards with which charitable institutions are expected to comply.
The exception is the case of a charity registered as a public company. In such a case, the charity is required, as with all public companies, to have its accounts audited annually and filed at with the Registrar of Companies.
2. Companies Regulations:  Here are found the model by-laws and other forms that are required for incorporating and reporting annually on a not for profit company. The model by-laws are generally followed, with minimal alteration to take account of any particular characteristics of the charitable institution. The fees for incorporation and the annual fees for maintaining the company ‘in good standing’ are set out here. Only an attorney or other company formation agent can file the forms that apply, no self-help is permitted with companies in Anguilla.
3. Friendly Societies Act:  Friendly Societies may be considered more user friendly than companies in Anguilla. Historically they were used as vehicles for mutual association for insurance, pensions or savings, and loan-like purposes. They were initially created for people to come together for ceremonial and friendship purposes, or for common financial or social purposes. Before modern insurance and the welfare state, Friendly Societies provided financial and social services to individuals. Today, under our Act, they serve a much wider charitable purpose. According to section 5(b) of the Act a Friendly Society may be formed for any benevolent or charitable purpose.
The requirements of the Act are quite simple and inexpensive in comparison to those that apply to companies. They can be registered without the intervention of a company formation agent. It is still important, as with a company, to have an attorney at law be invited to serve pro bono on the board and to attend general meetings to ensure that nothing is done to bring the Society into conflict with the law. The registration fee for a Friendly Society is EC$6.20 in comparison with the registration fee of EC$1,500.00 and an annual fee of EC$1,500.00 if it is a public company. If it is a private company, registration costs are EC$800.00, and annual filing costs are EC$750.00[1].
One further saving that can be made by using a Friendly Society rather than a company is that in Anguilla every company is required to make electronic filings through the agency of a company formation agent. Each company is required to have such a registered agent act as the registered office of the company, and there maintain the corporate books and records. This service is usually provided at an annual fee, though there are many attorneys at law and certified accountants who willingly provide such services at no cost. A Friendly Society is permitted by law to have its registered office at any address, which need not be at a professional, cost-carrying agent.
It is also noticeable that Friendly Societies are subject to better monitoring in Anguilla than are charities registered as private companies. In the case of all Friendly Societies, the law requires that its accounts be audited by a person approved by the Governor [in effect, by the Financial Services Commission], and the Auditor is required to send the audited accounts to the Registrar of Friendly Societies within two months. There is no auditing requirement for private companies, whether charitable or not.
In addition to the annual filing by the Auditor, each Friendly Society is required to file with the Registrar a return showing the number of members on its roll, the amount of money deposited in banks, the amount of money invested in real security, and the amount of money in the Treasurer’s hands.
Additionally, each year, between January and March, each Friendly Society is required to send the Registrar an Annual Return setting out certain financial information. Additionally, after any meeting at which there have been elections resulting in changes to the officers, a list must be sent to the Registrar.
One difference between a Friendly Society and a company is that any real property held by a Society is not registered in the name of the Society, but in the name of one or both of the Society’s Trustees, of whom there must be at most two. A Society otherwise has its own assets and liabilities, and the members are not liable for the debts of the Society.
4. Friendly Societies Regulations:  Here are found the various forms and list of filing fees. It is not necessary for a company formation agent to act as agent in filing them, they can be filed directly by a representative of the board.
5. Standards:  In addition to the formal, legal requirements of the Companies Act and the Friendly Societies Act, boards of directors and members of charitable (or not for profit as they are now called) companies, there are certain internationally recognised standards that are expected of both the officers and members. Standards can be divided into two general areas. The first is standards expected of members and officers. The second is standards expected of the institution itself.
Standards for officers[2]:
The Board of Directors/Executive Committee ensures member integrity and collective responsibility
Ø      It promotes and protects the organization’s mission, values and reputation and works to enhance its public standing through all activities carried out by members on behalf of the organization.
Ø      It acts and makes decisions in the collective interest of the organization it governs and shares group responsibility for these decisions. Its members do not act or make decisions according to their own individual interests, or in the interests of any other organization or cause they may be involved in or have an interest in.
Ø      It has a code of conduct that enables its members to identify and declare actual or potential conflicts of interest and provides an agreed process for dealing with such conflicts.
Ø      It does not allow members to derive benefit from their position beyond what is allowed by the law and the rules of the organization.
Ø      It ensures that members when elected by a particular constituency act for the collective benefit of the whole not just for that individual constituency.
The Board/Executive Committee determines the organization’s strategic direction and policies
Ø      It sets out the organization’s strategic direction so as to deliver its mission, goals and objectives. With the assistance of any staff, it makes certain that the organization’s programmes, activities and services reflect its strategic priorities.
Ø      Where there is an Executive Director/Manager, it concentrates on strategic thinking and does not involve itself with day to day operational and management matters.
Ø      It creates policies and monitors the organization’s activities in all areas.
The Board/Executive Committee appoints and supports the Executive Director/Manager
Ø      It is responsible for the recruitment, support, professional development, appraisal and remuneration of the Executive Director/Manager.
Ø      It ensures, primarily through the Chair/President, that the duties and responsibilities of the Executive Director (which includes the right to appoint the organization’s staff) are clearly set down, agreed and carried out.
Ø      It acts in partnership with the Executive Director/Manager to achieve the organization’s mission.
The Board/Executive Committee monitors and reviews the organization’s performance
Ø      It monitors and reviews implementation of the annual programme and budget by receiving timely and objective performance reports that concentrate on the strategic implications of programme and budget outcomes.
Ø      It ensures that authority delegated to volunteers and staff is sufficient for purpose and subject to appropriate budgetary and other limits; and that the use of such delegated authority is monitored and reviewed.
Ø      It periodically reviews the organization’s governance structure and its costs to ensure its continued relevance and effectiveness.
Ø      It takes whatever steps are necessary to maintain the organization as an effective movement.
The Board/Executive Committee provides effective oversight of the organization’s financial health
Ø      It ensures that the organization is solvent and that its finances are managed ethically and according to the letter of the law.
Ø      It identifies and regularly reviews the risks faced by the organization: it creates policies and takes action to manage the risks identified.
Ø      It ensures that adequate insurance is provided to protect the organization against potential liabilities.
Ø      It establishes the organization’s system of internal control and regularly reviews its operation.
Ø      It approves the budget, monitors spending and ensures that the organization’s finances are managed in its best interests. It is responsible for the appointment of auditors and approves the audited annual accounts and financial statement.
The Board/Executive Committee is open, responsive and accountable
Ø      It is open and accountable for its governance of the organization.
Ø      It encourages and enables the engagement of service users and beneficiaries in the organization’s planning and decision-making.
Ø      It is accountable for the performance of the organization; for ensuring that financial obligations are met; for operating ethically and within the law and other legal requirements. Accountability for these cannot be delegated by Board/Executive Committee members but authority to achieve them can be delegated.
Ø      It is able to show clearly how the organization contributes to the greater good of the society it serves.
The Board/Executive Committee ensures its own review and renewal
Ø      It organizes its work to make the most effective and efficient use of the time, skills and knowledge of its members, and ensures that their capabilities are enhanced through development and training activities.
Ø      It engages in regular self-assessment of its own performance and that of individual Board/Executive Committee members.
Ø      It identifies and develops potential members in order to maintain and increase the diverse range of skills, experience and knowledge required.
Organisational standards expected of a charitable institution.
Besides the standards set by law, there are other standards generally expected of a charitable organisation. These include:
Ø      Principles:  The Association/Company’s constitution, by-laws and/or regulations should not contain any provisions that are inconsistent with the law.
Ø      The Association/Company’s constitution shall state that it is a not-for-profit organisation which is not and shall not be controlled by commercial interests and that all its income, commodities, property and other assets shall be applied solely towards the promotion of its objects.
Ø      Membership:  The members of the Association/Society/Company who shall have the right to vote shall be clearly defined.
Ø      The terms of individual membership, such as renewal and cessation of membership and resignation shall be defined.
Ø      A record of individual members shall be kept and updated annually.
Ø      The elections of members as honourary officers shall be held at intervals to be set out in the constitution.
Ø      There shall be a meeting, open to all individual members, at least once a year.
Ø      A quorum and what constitutes a majority of votes shall be defined for all meetings of the Association/Company.
Ø      Adequate notice shall be given for the annual general meetings of the Association/Company and of the Board/Executive Committee.
Ø      Of those individual members entitled to vote, each shall have one vote only whether exercised in person or by proxy.
Ø      Individual members shall be prohibited from deriving personal material gains by virtue of that status, either during the existence of the Association/Company or after its dissolution.
Ø      Governance:  The full membership entitled to vote shall be involved in the process of electing members of the Board/Executive Committee.
Ø      Provision shall be made for the regular rotation of its honourary officers and members of the Board/Executive Committee, and the total cumulative years of service.
Ø      The elected Board/Executive Committee of the Association/Company should be made up of at least 50% women.
Ø      Conflicts of Interest:  Other than reimbursement of expenses incurred, members volunteering their services to the Association/Company shall not receive any payment for those services. No individual member shall be granted a loan from the funds of the Association/Company, irrespective of the source of the funds.
Ø      The Association/Company shall adopt a policy of prohibiting the appointment of spouses and relatives (grandparents and parents, brothers and sisters, sons and daughters, grandsons and granddaughters and in-laws) of members and staff to any position within the organisation or to consultancies.
Ø      Each member of the Board/Executive Committee and the most senior staff members of the Association/Committee shall sign an annual conflict of interest declaration.
Ø      No volunteer or staff member shall use her/his position with the Association/Company to further the manufacture, distribution, promotion or sale of any materials, products or services in which the volunteer or staff member, his or her spouse or relatives has either a direct or indirect financial interest.
Ø      No member of staff shall be permitted to vote.
Ø      Accountability:  Provision shall be made for the accounts of the Association/Company to be audited annually by a firm of external auditors appointed by the members.
Ø      Provision shall be made that in the event of the dissolution of the Association, any assets remaining after the settlement of debts and liabilities shall pass to a body or bodies with substantially similar objectives, or as local law requires.
Ø      Strategic Planning:  The Association/Company shall have a current, written medium-term Strategic Plan that is derived from a consultative process that involves staff and volunteers, that takes into consideration an analysis of the country situation and is consistent with the organisation’s aims and objectives.
Ø      Monitoring and Evaluation:  The Association/Company shall regularly monitor and evaluate its programmes, and use this information to improve the performance of those programmes.
Ø      Responsibilities of the Board:  The Board/Executive Committee shall consider, review and approve the Association/Company’s Annual Work Programme and Budget.
Ø      The Board/Executive Committee shall ensure that the requirements of any donor agency are met in full.
Ø      The Board/Executive Committee shall ensure that an appropriate control framework exists to protect the Association/Company’s assets from loss of any kind arising from fraud and other offences, waste, extravagance, inefficient administration, poor value for money or other causes.
Ø      The Board/Executive Committee shall ensure that generally accepted international accounting and auditing principles are followed in the financial management of the Association/Company.
Ø      The Board/Executive Committee shall develop, review and approve the Association/Company’s Strategic Plan.
Ø      The Board/Executive Committee shall develop and put in place suitable policies to cover the Association/Company’s objectives and the means by which they are to be achieved.
Ø      The Board/Executive Committee shall ensure that the personnel polices, procedures and practices of the Association/Company are consistent with and conform to applicable national laws and incorporate best management practices.
Ø      The Board/Executive Committee shall determine through by-laws or regulations the responsibilities of the Executive Director/Manager, which shall include but shall not be limited to the operational management of the Association/Company, the implementation of polices, and the recruitment, employment, supervision and termination of staff.
Ø      The Board/Executive Committee shall recruit and employ an Executive Director/Manager at an appropriate salary level, respect his/her responsibilities as set out in the by-laws and any contract or policy document, and appraise his/her performance annually and in writing.
Ø      Annual General Meeting:  The Annual General Meeting shall select and appoint external auditors in accordance with the law, the constitution, and when appropriate, in accordance with the requirements of donor agencies.
Ø      The Annual General Meeting shall receive, review, and accept the annual audit of the Association/Company.
Ø      The Annual General Meeting shall regularly monitor and review implementation of the Strategic Plan and Annual Work Programme and Budget.
Ø      The Annual General Meeting shall consider, review and approve the Association/Company’s Annual Report.
Ø      The Annual General Meeting shall elect the Board/Executive Committee in accordance with the constitution/by-laws.
Ø      Executive Director:  The Executive Director/Manager shall actively participate in collaboration with the Board/Executive Committee in developing the Strategic Plan; mobilising the appropriate resources to support the Association/Company’s programme of work and its financial sustainability; and promoting and advancing the Association/Company’s mission and objectives.
Ø      The Executive Director/Manager shall manage the implementation of the Annual Work Programme and Budget, and informs the Board/Executive Committee of any executive actions that may have policy implications.
Ø      The Executive Director/Manager shall devise and implement appropriate systems and procedures to give effect to policies approved by the Governing Body.
Ø      The Executive Director/Manager shall ensure that the planning of the activities of the Association/Company is complete and thorough and consistent with the strategic direction and policies approved by the membership.
Ø      The Executive Director/Manager shall ensure that the operational plans, work programmes and budgets and periodic reports are prepared in accordance with the guidelines laid down by any donor agency.
Ø      The Executive Director/Manager shall ensure that each of the Association/Company’s staff has clearly defined objectives, goals and targets, and understands the Association/Company’s role and mission.
Ø      The Executive Director/Manager shall provide effective and efficient management of the Association/Company in all respects, including the maintenance of an effective internal control system.
Ø      The Executive Director/Manager shall be the Association/Company’s accounting officer and as such shall ensure that the necessary financial systems and procedures are put in place to account for all income and expenditure and provide due evidence of their use on the purposes for which intended.
Ø      The Executive Director/Manager shall appoint and dismiss his/her staff and in doing so must at all times fully comply with the law and with the Association/Company’s procedure on this as agreed by the membership.
Ø      The Executive Director/Manager shall ensure that formal evaluations of staff performance in relation to previously agreed objectives and standards are carried out every year.
Ø      The Executive Director/Manager shall ensure that staff and volunteers alike respect the agreed lines of authority and that staff are free of harassment.
Omitted from this analysis are most of the organisational and management rules that govern companies and Friendly Societies generally. This paper is not intended to be an exhaustive study of the functional roles of presidents, secretaries, or treasurers of companies and Friendly Societies. Emphasis has rather been placed on standards of behaviour expected of the membership and boards of directors of charitable companies and Societies. It will be for the attorney serving as pro bono adviser of each charitable entity to ensure, eg, compliance with any applicable statutory rules and requirements, and the laws governing meetings generally.
15 December 2009


[1]  These fees are accurate as of the 2004 edition of the laws of Anguilla. They are increased from time to time, and you will be informed of the current costs by your attorney.
  • [2]  Adapted from the IPPF Code of Good Governance, which itself was compiled from a variety of sources including: Code for the Voluntary and Community Sector, Governance Hub (an independent partnership of seven prominent organizations working to improve the quality of governance in the UK voluntary sector);
  • The Good Governance Action Plan for Voluntary Organizations and Developing Trustee Boards, National Council for Voluntary Organizations (NCVO);
  • The Complete Guide to Good Governance in Organizations and Companies, Doug Matheson, Profile Books, 2004, Auckland, New Zealand.