7.0 Eligibility, Tenure and Election of Directors
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7.1 Definitions
In this Section, unless the context otherwise requires:
7.1.1 "Election" means the electoral process detailed in Rules 7.5 and 7.6 (whether or not a ballot is held as part of that process) and, where applicable, includes any adaptation of that process in the case of a by-election and "elect" has a corresponding meaning;
7.1.2 "Co-option" means the process detailed in Rule 7.12;
7.1.3 "Class", in relation to Board seats, means any one of the classes of Board seat established by Rule 7.2.
7.2 Composition of Board Seats
7.2.1 Of the Board seats:
7.2.1.1 1 seat is designated as the "Associates' Seat";
7.2.1.2 8 seats are designated as the "General Seats".
7.2.2 In addition, there may be up to 2 "Co-opted Seats". The power to co-opt is granted under Rule 7.12. Rules 7.4, 7.5, 7.6, 7.7, 7.8, 7.9 and 7.10 do not apply to these Co-opted Seats.
7.2.3 Only Associate Members are eligible to vote in a ballot for the Associates' Seat.
7.2.4 Only Full Members are eligible to vote in a ballot for General Seats.
7.3 Eligibility and Disqualification as a Director
7.3.1 Any natural person (whether or not a Member of the Foundation) who is not disqualified by the next following Sub-Rule, may be elected or appointed as a director of the Foundation.
7.3.2 The following persons are disqualified from being elected or appointed or holding office as a director of the Foundation:
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7.3.2.1 A person under 18 years of age;
7.3.2.2 A person who is an undischarged bankrupt;
7.3.2.3 A person who is, for the time being, prohibited from being a director or promoter of or being concerned or taking part in the management of a company under section 382, section 383 or section 385 of the Companies Act 1993;
7.3.2.4 A person who is subject to a property order made under section 30 or section 31 of the Protection of Personal and Property Rights Act 1988;
7.3.2.5 A person who is, or is deemed to be, subject to a compulsory treatment order made under Part II of the Mental Health (Compulsory Assessment and Treatment) Act 1992;
7.3.2.6 A person who has been convicted of a crime involving dishonesty as defined in section 2(1) of the Crimes Act 1961 provided that no account shall be taken of any conviction after the expiry of 10 years from the date of the conviction.
7.3.3 A person who is disqualified as a director but who nevertheless acts as though he or she were a director shall be liable for any breach of any duty or obligation imposed on directors of the Foundation committed by him or her whilst so acting in the same manner and to the same extent as if he or she had not been disqualified.
7.4 Tenure
7.4.1 Subject to this Constitution, a person elected as a Director:
7.4.1.1 Assumes office at the end of the Annual General Meeting at which he or she is declared to be elected; and
7.4.1.2 Shall retire from office at the end of the third Annual General Meeting held after his or her assumption of office, but he or she is eligible for re-election at the election held prior to that meeting in relation to the vacancy arising from his or her retirement.
7.4.2 The office of Director is vacated if the person holding that office:
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7.4.2.1 Resigns in accordance with Sub-Rule 7.4.3 below; or
7.4.2.2 Becomes disqualified from being a Director pursuant to this Constitution; or
7.4.2.3 Is absent from three consecutive meetings of the Board unless leave of absence has been given in writing by the chairperson of the Board; or
7.4.2.4 Dies.
7.4.3 A Director may resign office by signing a written notice of resignation and delivering it to the Registered Office of the Foundation. The notice is effective when it is received at the Registered Office or at a later time (being not later than 1 month from the date of such receipt) specified in the notice.
7.4.4 Notwithstanding his or her vacation of office, a person who held office as a Director remains, in relation to acts and omissions and decisions made while he or she was a Director, liable under those provisions of this Constitution or of any statute or any principles of the general law that impose duties or obligations on a Director of the Foundation.
7.5 Board Elections
7.5.1 In each calendar year, the Board must conduct an election or elections to fill every seat becoming vacant by reason of Directors retiring at the end of that year's Annual General Meeting as provided by this Constitution. Where seats of more than 1 class fail to be filled, separate, but concurrent, elections shall be held in respect of each class.
7.5.2 Nomination: No person may be elected as a Director under this Rule unless a valid nomination of that person for election as a Director is completed and delivered to the Registered Office or to the post office box or private bag of the national office of the Foundation before 4 p.m. on the 40th Working Day prior to the date fixed for the Annual General Meeting.
7.5.3 A nomination form is not valid unless:
7.5.3.1 It is on the prescribed form;
7.5.3.2 It contains only 1 nomination;
7.5.3.3 It is signed by 2 proposers;
7.5.3.4 In the case of a nomination for the Associates' Seat, each proposer is an Associate Member;
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7.5.3.5 In the case of a nomination for a General Seat, each proposer is a Full Member;
7.5.3.6 It contains a statement signed by the candidate that he or she consents to the nomination and to becoming a Director (if elected) and that he or she is not disqualified in terms of this Constitution from being a Director;
7.5.3.7 It contains an acknowledgement by the candidate that he or she has familiarised himself or herself with the terms of this Constitution and undertakes to the Foundation and its Members, if elected, to be bound by the responsibilities, duties, obligations and liabilities of Directors contained in this Constitution or by statute or any principles of general law.
If the same person is nominated for more than 1 class of seat then every nomination of that person is invalid.
7.5.4 If the number of validly nominated candidates exceeds the number of vacancies for the class of seat concerned then a postal ballot shall be held to fill the vacancy or vacancies. Except as expressly provided in this Rule 7 the ballot shall be conducted in the manner provided by Rule 12 (which sets out the detailed procedure for postal ballots).
7.5.5 The voting papers shall be despatched to all Members entitled to vote in the ballot not later than the 15th Working Day after the day on which nominations close, but no ballot is invalidated by any omission, error or delay in or relating to the despatch of voting papers or by the non-receipt of a voting paper by any Member.
7.5.6. If, by reason of an equality of votes for 2 or more candidates, the ballot is not complete, the chairperson of the Board or, if the chairperson is one of the tied candidates, the Chief Executive shall decide by lot in such manner as he or she shall determine which of such candidates shall be elected and thereby complete the ballot.
7.5.7 At the Annual General Meeting the chairperson shall:
7.5.7.1 Where no Ballot has been held, declare each validly nominated candidate to be elected;
7.5.7.2 Where a ballot has been held, announce the results of the ballot and declare each successful candidate to be elected.
7.5.8 This Sub-Rule applies where, after the closing date for nominations:
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7.5.8.1 Any candidate withdraws his or her candidacy; or
7.5.8.2 Any candidate dies; or
7.5.8.3 Any candidate becomes disqualified; or
7.5.8.4 In the course of any election there arise any other event or circumstances affecting or relating to the conduct of the election not expressly provided for in this Constitution.
Where this Sub-Rule applies, the Board may appoint an independent solicitor of the High Court of New Zealand to determine what action should be taken to deal with the event or circumstances or the consequences thereof in relation to the election. Where any such event or circumstances is or are the same or similar to any event or circumstances dealt with by the Local Elections and Polls Act 1976, then the solicitor so appointed may have regard to, but shall not be bound by, the relevant provisions of that Act.
In no event shall a determination be made under this Sub-Rule that is or would be, in direct conflict with any express provision of this Constitution. Where a determination is made under this Sub-Rule, the election shall be conducted in accordance with the determination and no person shall call into question the determination or any steps taken, in relation to the election, by the Board or any Director or employee of the Foundation in accordance with the determination.
7.6 Voting Entitlements
7.6.1 This Rule applies to any ballot held under the last preceding Rule.
7.6.2 In and for a ballot for the Associates' Seat, each Associate Member is entitled to receive and use 1 voting form.
7.6.3 In and for a ballot for the General Seats:
7.6.3.1 Each Full Member (other than a Custodial Guardian) is entitled to receive and use 1 voting form;
7.6.3.2 Except as provided by the next following sub-paragraph, each Custodial Guardian is entitled to receive and use a separate voting form for each Qualifying Child in respect of whom he or she is recorded as being a Custodial Guardian in the records kept by the Foundation under Sub-Rule 5.5.3;
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7.6.3.3 Each Custodial Guardian to whom sub-rule 2.1.3.2 applies is entitled to receive and use a separate voting form for each Qualifying Child as aforesaid together with 1 additional voting form for himself or herself in his or her right being a Full Member under Rule 5.2.2.1 or by virtue of Section 12 (1) (a) of the Royal New Zealand Foundation of the Blind Act 2002 (as the case may be).
7.6.4 A voter may use a voting paper to vote for any number of candidates not exceeding the number of vacancies to be filled in the ballot to which the voting form relates.
7.6.5 A voting form that does not comply with the last preceding Sub-Rule 7.6.4 is invalid and shall not be counted.
7.7 Casual Vacancies
A casual vacancy occurs where a Board seat becomes vacant otherwise than by the retirement of a director under Rule 7.4.1.2 above (which provides for triennial retirements).
7.8 Filling Casual Vacancy from Casual Vacancy Reference Schedule
7.8.1 Where any ballot is held under Rule 7.5 (which relates to the procedure for the conduct of ordinary Board elections), the Board must procure the compilation of a schedule (called a "Casual Vacancy Reference Schedule") containing the names and addresses, as set out in the relevant nomination forms, of the unsuccessful candidates together with the number of votes received by each of them respectively. The schedule must be compiled immediately after the conclusion of the meeting at which the result of the ballot is announced. A separate Casual Vacancy Reference Schedule shall be compiled in relation to each class of seat for which a ballot was held.
7.8.2 The Board must from time to time cause to be deleted from any current Casual Vacancy Reference Schedule the name and other particulars of, or relating to, any person:
7.8.2.1 If that person makes written request for such deletion; or
7.8.2.2 If the Board receives notice of the death of that person; or
7.8.2.3 If any notice sent to that person under Rule 7.8.5 is returned unclaimed; or
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7.8.2.4 If that person is appointed to the Board under this Rule.
7.8.3 The Board must change the address of any person as shown in any current Casual Vacancy Reference Schedule to any other address in New Zealand nominated in writing by that person.
7.8.4 A Casual Vacancy Reference Schedule ceases to be of any effect and shall be destroyed:
7.8.4.1 If all names have been deleted from the Schedule under Sub-Rule 7.8.2 above; or
7.8.4.2 Upon the completion of the first election (including any by-election) for any seat of the class to which that Schedule relates held after the original compilation of the Schedule.
7.8.5 Where the Board becomes aware that a casual vacancy has occurred and there is a current Casual Vacancy Reference Schedule in force for the class of seat concerned, the Board shall as soon as practicable, send to each person listed on the Schedule a copy of this Rule, a copy of the relevant Casual Vacancy Reference Schedule, a form of consent to being a Director (including an acknowledgement and undertaking as provided in Rule 7.5.3.8), a form of certificate that he or she is not disqualified from being a Director and a notice fixing the closing date for return of the consent and certificate to the Registered Office. The closing date must be not less than 10 Working Days from the date of despatch of the notice and accompanying documents. A person is not eligible for appointment under Sub-Rule 7.8.6 unless he or she returns the consent and certificate, duly signed, to the Registered Office by the closing date.
7.8.6 If only 1 person returns a signed consent and certificate by the closing date, then the Board must appoint that person to fill the vacancy. If 2 or more persons return a signed consent and certificate by the closing date then the Board must appoint whichever of them received the highest number of votes in the ballot to which the Schedule relates. Where 2 or more persons returning signed forms by the closing date tied for the highest number of votes then the one to be appointed to fill the vacancy shall be determined by lot in such manner as the chairperson decides. Any appointment required to be made under this Sub-Rule shall be made at the first Board meeting held after the closing date.
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7.9 Filling Casual Vacancies in Other Cases
7.9.1 This Rule applies only where a casual vacancy occurs and there is no current Casual Vacancy Reference Schedule in force for the class of seat concerned or the process set out in the last preceding Rule fails to fill the vacancy.
7.9.2 Subject to the next following Sub-Rule, the Board must, as soon as practicable after it becomes aware of the existence of circumstances to which this Rule applies, conduct a by-election to fill the vacancy.
7.9.3 This Sub-Rule applies where:
7.9.3.1 A casual vacancy occurs in any Board seat within the period beginning on the date 2 months prior to the end of the Foundation's annual balance date and ending on the date of the next following Annual General Meeting; and
7.9.3.2 The person whose vacation of office caused the vacancy would have been due to retire in any event at the end of that Annual General Meeting.
Where this Sub-Rule applies, the vacancy shall be filled by the election due to be held or in the course of being held in relation to that seat under Rule 7.5 (which relates to the procedure for the conduct of ordinary Board elections). In the meantime the seat shall remain vacant.
7.9.4 Where a by-election is required in accordance with this Rule, then, subject to the next following Sub-Rule, it shall, so far as the circumstances permit, be conducted, in accordance with the procedures contained in Rule 7.5.
7.9.5 The following provisions apply to a by-election:
7.9.5.1 The Board must, send to all Members who would be entitled to vote in any ballot held for the purposes of the by-election, a notice calling for nominations to fill the vacancy. The notice must fix a closing time and date for the delivery of completed nomination forms. Subject to the next following Sub-Rule 7.9.5.2, the closing time and date shall be 4 p.m. on the 15th Working Day after the day on which the notice calling for nominations is despatched.
7.9.5.2 Where, in any calendar year, the date on which the Board first becomes aware that the by-election is required falls within the period of 3 months beginning on the date 2 months prior to
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the end of the Foundation's Financial Year then the Board may resolve to conduct the ensuing by-election or any part of it concurrently with the election or elections due to be held in that calendar year under Rule 7.5 or any part of such election or elections. In such a case, the Board may, in order to procure any necessary coincidence of times and dates, abridge or extend any dates or times limit that would otherwise apply in relation to the delivery of nominations.
7.9.5.3. Where the by-election is conducted concurrently with an election under Rule 7.5, and there is a ballot in the by-election, then at the Annual General Meeting the chairperson shall announce the results of the ballot and declare each successful candidate to be elected. In any other case, any requisite announcement and declaration in respect of the outcome of the by-election shall be made by the chairperson at the first Board meeting following the completion of the by-election.
7.10 Tenure of Director Filling Casual Vacancy
A person appointed or elected to fill a casual vacancy:
7.10.1 Assumes office at the end of the meeting at which he or she is appointed or declared to be elected (as the case requires); and
7.10.2 Must retire from office at the time when the person whose vacation of office caused the casual vacancy would have retired from office if the casual vacancy had not occurred, but the person so retiring is eligible for re-election at the election held prior to that meeting in relation to the vacancy arising from his or her retirement.
7.11 Validity of Directors' Acts
The acts of a person as a director are valid even though:
7.11.1 The person's appointment was defective; or
7.11.2 The person is not qualified to be appointed or to act as a Director.
7.12 Power To Co-opt Additional Members To The Board
7.12.1 In this Rule:
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The expression "co-opted Board member" means a person appointed as a member of the Board pursuant to this Rule.
The expression "elected Board member" means any Board member other than a co-opted Board member.
7.12.2 Subject to this Rule, the Board may, from time to time, appoint any person as a co-opted Board member.
7.12.3 The number of co-opted Board members in office at any given time must not exceed 2.
7.12.4 No co-opted Board member may be appointed for a term exceeding 3 years.
7.12.5 A co-opted Board member may be re-appointed at the expiration of the term for which he or she was appointed. All the provisions of this Rule apply to the re-appointment of a co-opted Board member. However, a co-opted Board member may not hold office for a period exceeding 2 consecutive terms or 6 years, whichever is the lesser.
7.12.6 The Board may exercise its powers under this Rule only for the purpose of extending, augmenting or balancing, in the interests of good governance, the range or quality of skills, knowledge and/or experience available on the Board, or in relation to a particular matter.
7.12.7 The co-option of additional members to the Board is a 2 stage process:
Stage One: decision to exercise the provision to co-opt
Stage Two: decision to appoint a particular individual under the provision
7.12.8 Decisions related to Stage One and decisions related to Stage Two must be made by a resolution of the Board.
7.12.9 Only elected Board members may vote on a resolution pursuant to sub-rule 7.12.8 of this Rule.
7.12.10 Resolutions on matters related to Stage One must state the reason for setting in train the co-option provisions.
7.12.11 The Board members voting in favour of the resolutions relating to Stage One or Stage Two of the co-option process must:
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a) Comprise a majority of elected Board members; and
b) Unless the Board members voting in favour of the resolution comprise a two-thirds majority of all elected Board members holding office at the time, must include the chairperson of the Board.
7.12.12 Without limiting Rule 7.3.2 [relating to grounds for disqualification of members of the Board] a person is disqualified from being appointed as a co-opted Board member if he or she was an elected Board member in the preceding term, or stood unsuccessfully for election to the Board in the current term.
7.12.13 Nothing in this Rule prevents a person, who is otherwise qualified to do so, from holding office as an elected Board member after he or she ceases to be a co-opted Board member.
7.12.14 A co-opted Board member may not be appointed chairperson of the Board.
7.12.15 Except as expressed in this Rule, a co-opted Board member has the same functions, duties and powers as an elected Board member. Nothing in this Sub-Rule shall be construed as imposing on a co-opted Board member any duties or obligations additional to those of any other Board member.