Response to Allegations about Board Structure, By-laws and Legal Standing
This communication is meant to address a series of concerns, questions, and threats of legal action that have been raised over the past year since the by-laws and structure of the BurnT Board (the “Board”) changed, pursuant to a vote at the 2016 AGM. We thank all community members who have raised concerns.
The Board’s position is that the current structure and by-laws comply with Ontario law. The changes to the voting rights of members, the changes to the by-laws, and appointment (instead of election) of directors was voted on and passed by a majority of members at the 2016 AGM. The reason for our position is explained in further detail below.
We recognize that this position, and the history of events, has not been sufficient to address allegations and concerns raised, such as:
- Board structure is illegal
- Board has stolen money from community
- By-laws improperly amended
We have tried to address these allegations privately with individuals without success, and now this has spilled into the public forum of speculation, allegations, and arm-chair lawyering.
To hopefully and finally address these allegations, the Board has resolved to retain legal counsel to provide an opinion on its status, including the following matters:
- Do the current by-laws comply with Ontario law, and implicitly, were the old by-laws properly amended pursuant to the 2016 AGM vote?
- Were member-voting rights properly removed by the 2016 AGM vote?
- Are the current Directors properly on the board?
- General legal advice on obligations regarding transparency, communications, financials, etc.
While this will affect our operating budget going forward, the Board believes that this is the only way left to address these allegations.
If you have any comments or questions about our position, decision to engage legal counsel, or other topics, please email the Board at firstname.lastname@example.org. We will consider your questions/comments, and be addressing this topic at the AGM meeting (to be announced soon).
We will not be replying to individual questions/comments here.
For a summary of the history of events and basis for our position, please continue reading.
History of events:
Prior to the 2016 AGM, the BurnT By-Laws allowed amendments to the same to be enacted by a majority of directors (Article XII, s. 53). The Board was further empowered by these by-laws under s. 40 to make such decisions and prescribe such rules and regulations that were not inconsistent with the by-laws relating to the management and operation of BurnT.
The prior Board determined that the structure of membership, voting rights, and its difficulty defining and representing the Toronto Burning Man community meant that changes must be made. The Ontario Corporations Act (which applied to the past by-laws and to the current by-laws) requires that any amendment to the by-laws is only effective until the next Annual General Meeting of the not-for-profit corporation (this is paraphrased of course but see. S. 129(2) of this Act for the whole section).
In order to amend the by-laws to the current structure, the Board invited all members to the 2016 AGM. The invitation to the 2016 AGM read, in part, as follows:
- Change bylaws
Early thoughts are to revise the Firefly Arts Collective Bylaws (they produce the Vermont Regional Burn) to reflect Canadian laws and to have the board produce the two regionals based on this model. Firefly bylaws can be found here:
A bit of history.
The BurnT board was created as a way to put some formal decision making around the bank account that our community had built up from running events. Each event that showed a profit put more money in the account. People were not comfortable having that much community money in their personal bank accounts. We were deadlocked on how to agree to spend the money. The formal non-profit organization was created to resolve these problems.
When the board was created it was natural to codify up what we as a community were doing at the time. The board represented the community and held the bank account in trust. The board was the gateway for the people in the community who step up and run the events to get to the money. Sometimes the board decisions were perceived as a things that blocked events from going on. The board had all of the authority over events but none of the responsibility. The event producers had all of the responsibility and none of the authority. This is not really a fun way to voluntarily produce events.
The board was created by elections. There was some concern as to who were the members of the community that were allowed to vote. Past volunteers? Only people who had gone to the burn? Artists? Attendees of events? This was kind of a nebulous thing. Also because the board really only said yes or no to events, there was really not that much that people could promise to do as a board member. People had no specific criteria to judge who would do well on the board. Someone you trust? Someone who is reliable? Someone who is sexy? Who do you vote for?
At the same time in our community we started experiencing burn out from the event producers. These were people who were quite happy to step up, but they did not feel supported by the board and were sometimes badgered by the board or the community. Many vowed never to run an event again. This was an unfortunate loss of capacity in our community, just when we should be building it.
It was pointed out to us recently that our board had an incorrect focus. Instead of the board representing the community, the board should represent the events. This is a subtle change. This puts the responsibility of running the events on the board where they already have the authority. We don’t have a way of defining our community, but we can easily define our events. In fact, this is how other regions do things. Their boards are designed to specifically run a regional and a decompression. The positions on the board reflect this.
We took a look at the bylaws for Firefly. Their mandate is to run Firefly. They have the responsibility for making sure the event takes place on the board. Their board is not reflecting a community, it reflects a well-liked and understood event. Their board positions match the positions you would need for running events. In fact they have built-in mentoring. If you are the vice-president, you serve for a year and then you become president for a year and then you mentor the incoming president for a year. This is built-in capacity building for the organization. In fact for Firefly the board did away with terms. Board members stay on the board as long as they are enthused about producing the events. They even allow for people who leave the board to stay on in a non-voting honourary board position for advising them.
The bylaws that Firefly has focus on providing mechanisms for the board to reach consensus, but at the same time provide explicit instructions on how to deal with voting when divisions inevitably arise.
We the current board propose that we change the bylaws to what Firefly has, but with a few modifications to the places in their bylaws that specifically reference US law and to state that we produce a decompression and a regional.
Once the new by-laws are in place then the board can draft up resolutions for having an ombudsman and a conduct committee.
The current board doesn’t have to put on the events and in fact can get in the way of them happening. We need to change the board so that instead of representing the community they represent the events. The Firefly bylaws are a really good starting point to make that change.
A few important things to point out about the invite to the AGM:
- It proposes a resolution to amend the by-laws
- It posts a link to a version of by-laws (FireFly) that will be basis for amendments
- It specifically cites the Board will cease to represent the “community” and instead will represent its events only.
- It specifically cites issues with community member identification and the problem that creates for community members having voting rights.
The 2016 AGM was held on April 17, 2016. Minutes of the 2016 AGM are found here. The Minutes on topics discussed regarding the by-law amendment read, in part, as follows:
- The community not being able to vote for Board members. While ideally community consensus is what we are all about, who makes up the community had never been successfully defined. Out of 366 registered voters and 2640 members on the Facebook BurnT group, 115 people is the most that have ever voted in an election. (the 2015 election had 103 voters).
- The community wouldn’t have any control over removing a power hungry board. The new board would be responsible for producing 2 events, but besides that it would have no power just responsibility. (the current bylaws don’t give the board power either) While a new board hasn’t been picked it will be between 7-21 members and they will be able to remove people who are not pulling their weight in event planning. It will also remove the biggest problem with the current bylaws – That any individual can propose a resolution for the AGM and effectively take control of the bank account if they get enough of their friends to come out to vote.
- Can other people still propose events and get board support? The answer, yes. You can still get seed money and be covered under the umbrella of the board’s insurance if you submit a proposal and a budget. Questions about putting on sanctioned events should be directed to Joshua as Regional Burning Man Contact. The Board has nothing to do with receiving sanctioning from BM.
The resolution passed 28 to 3 (14 were proxy votes and 2 present abstained from voting). A list of those who decided to attend the AGM can be found in the 2016 AGM Minutes.
The Board then appointed new Directors and amended the by-laws to reflect the Firefly by-laws that had been proposed at the AGM. While there may be a question about whether new Directors should have been appointed after the by-laws were amended, the Board’s position is that the AGM vote gave it the mandate to appoint new directors.
The Board believes that the above process was legitimate and compliant with the law. We will communicate again once we have received an opinion from legal counsel.