Thank you Brian for your well thought out reply.
Our bylaws cannot have a conflict of interest provision that can only be reduced to "I'll know it when I see it." -- We do not have a Justice Stewart to rely on.
Conflict of interest provisions are incredibly tough to draft. They often teeter between enforceable but limited, or unenforceable and far-reaching.
I see your point about the definition I have provided lacking specifics. But I disagree with your assertion that it is as simple as "I'll know it when I see it." Just because we don't have a formal Justice Stewart doesn't mean we should not define conflict of interest or have any provisions for it in our bylaws. Having something to point to is better than saying nothing at all. Would you be willing to help modify my proposed definition to teeter closer to a balance?
An issue with pulling directly from the the Canada Conflict of Interest Act, is that the text relies on the Interpretation section of the act. Without the interpretation section, we cannot define relatives, friends, or even private interest. Further, extending any conflict provisions to friends and relatives in the general sense, is that it is nearly impossible to define either group cleanly.
Our bylaws are not meant to be as comprehensive as Canadian law and legislation. They are intended to be the operating rules for the club, to be interpreted by a normal member. They require the application of reasonableness. I believe the definition of family, or friends, can be easily interpreted by a reasonable member of the club.
Government conflict of interest laws are designed for public office holders, not volunteer boards. Our board is, and likely will always be a board of volunteers. Our volunteer board members will have a natural tendency to gravitate to racing, motorsport, and vehicle related interests outside of their EMRA responsibilities. This can and does provide tangible benefits to the EMRA membership, including, but certainly not limited to: time away from work for board members, in-kind support, and donations.
Conflict of interest provisions are not unique to public offices. Nearly every private corporation will have a charter of ethics or some equivalent, and have provisions for conflicts of interest and how to manage it. Nor are they excluded from non-profit organizations. The Alberta government template for Articles of Association for a Public Non-Profit even go so far as to prohibit any pecuniary conflict of interest whatsoever:
Disqualification of Directors
32. The office of director shall be vacated if the director
e. is concerned or participates in the profits of any contract with the Company
Now this is only a template, and not a formal requirement. I am not suggesting we take such a rigid stance.
I agree that EMRA members, including executive members, being involved in for profit companies associated with motorsports can be a benefit to the EMRA as a whole. But that doesn't mean we should turn a blind eye when there is a conflict of interest because they "only want what is best for the club". That is only true until it isn't.
The best way to handle a conflict of interest is transparency so that everyone involved is aware of the conflict. Decisions can be made with complete information, and members with a conflict can be recused from decision making.
Any bylaw amendment of this sort also has to consider, what does the EMRA membership consider a conflict? Is a perceived conflict a conflict in our eyes? Are we concerned about all conflicts, or only pecuniary ones? What standard should a board member choose to determine when to recuse? How will we define family from a conflict perspective?
This is exactly my goal with the proposed addition to the bylaws. To create a definition of what the EMRA considers to be a conflict of interest so that we can more easily answer these questions. I will again point out that a standard of reasonableness can be applied so that we don't have to have the same prescriptiveness of Canadian law.
For paid board members, it is reasonable to expect them to arrange their private affairs to limit potential conflict, but not so for volunteers.
It would be extremely disappointing if a potential conflict of interest provision reduced the opportunities for business support to the EMRA, or, more importantly, prevented quality individuals from considering running for a position on the board.
As I stated earlier, I am not proposing that all EMRA members, or exec, arrange their affairs to avoid all conflict of interest. I am merely proposing a definition to help us manage situations when they arise.
We have a board election annually, where the membership can endorse board members behaviour through re-election, or disapprove by electing different boards. I do not know if there is a black and white conflict of interest provision that as a member, I would support at an AGM.
I am going to attempt to paraphrase, please accept my apology now if I misinterpret, and please correct me.
You would prefer the bylaws say nothing about conflict of interest, and wait for the membership to vote out any board member who is profiting personally from their position on the EMRA board.
Brian, thank you again for your detailed reply, and taking the time to read through the proposals and the bylaws. It is clear you have knowledge in this area. Clearly we disagree on this topic, but I see that as all the more reason for us to work together to find a common ground that will benefit the club. Would you be willing to meet with me so that we can go over this in more detail? You can email me at [email protected]
to get in touch, as I'm sure you don't want to share your personal information here.