By David

Many readers will have experienced occasions when a disagreement about some event degenerates into an exchange of personal insults. Project Vanguard very quickly achieved that status. Of course I am a very easy target. It takes almost no time at all for opponents to bring out the trouble maker, dishonest, reactionary and bad person labels. Remember Jenny from Lower Hutt? Very early on in the Vanguard debate she was throwing around personal insults like confetti at a wedding.

Recognizing that all this stuff was getting in the way of a reasoned debate I decided to ask a legal firm, specializing in sport’s law, for their “advice regarding the actions of the Swimming NZ Board (“SNZ Board”)”. I selected a firm whose reputation is above reproach, whose standing in the world of sport is without peer and who have a name for calling things the way they are. If my opinion on Project Vanguard was wrong I wanted them to say so. I have now received their report. In this article quotations from the Report are recorded in speech marks and italics.

In particular, I asked the lawyers to investigate:

“a. Whether the SNZ Board has acted properly in moving from each phase of Project Vanguard without receiving Delegate approval?

b. Whether the SNZ 2010 AGM minutes are a true reflection of what occurred at the AGM?

c. Whether the SNZ Board’s decision to dissolve the Project Vanguard Committee is lawful?

d. What next steps are available?”

Their answers are extremely interesting and are a cause for concern. The balance of this article will summarize their findings.

Approval to Move Between Stages
It appears that Project Vanguard has moved into the “Design” Stage Four without the approval of the Delegates. At least in a letter dated 23 April 2011 that’s what President Coulter told us. He said:

We will settle on a new engagement model for the following step/s over the next month or so which will see us designing a fairly detailed model for the delivery of all services.

So Coulter has admitted “completing” the “Committee’s mandated tasks” and moving to the “Design” Stage; that’s Stage Four. Were SNZ legally required to obtain approval from the Regions before taking this action? It seems so. Here is what the lawyers say:

at the 2010 AGM, the Chairman of the Project Vanguard Committee apologised for the oversight in not coming back to the Delegates for approval to move to Stage 2 and moved a retrospective motion seeking their retrospective approval. The resolution also stated that approval from the “membership” will continue to be sought at the end of each phase of the project seeking continuation to the next.

And the conclusion of all this is that the SNZ Board has “acted ultra vires (outside of its power) by not coming back to the Delegates to move to the next phase of the Project.”

Accuracy of the Minutes
The lawyer’s opinion says it all.

It appears therefore that the draft minutes that are currently on the website are not a correct reflection of what occurred at the AGM. Minutes remain in draft until they are “approved” by the Delegates at the next meeting so the accuracy of the minutes can be raised and resolved at the beginning of the next general meeting.

The onus of proving that the minutes are incorrect rests with the person making the claim. So ultimately, if it is determined the minutes are incorrect then the Delegates present at the 2010 AGM would be required to produce affidavits of what occurred at the AGM.

However given SNZ is acting on incorrect draft minutes we recommend steps are taken before the next AGM.

Dissolving the Vanguard Committee
The lawyers are very clear on this bit of trickery. Here is what they say.

We have reviewed the recent letter dated 21 April 2011, from the President of SNZ, Murray Coulter, which records that “the Committee’s mandated tasks have been completed” and that “the Board will now assume the project governance function directly. The Project Vanguard Committee was established by resolution of the Delegates at the 2008 AGM therefore, in accordance with legal principles the approval of the Delegates is required to dissolve the Committee.

In our view the SNZ Board is acting ultra vires if it dissolves the Committee without the approval of the Delegates.

Next Steps
Whenever a comprehensive report is summarized as has been done here there will inevitably be shades of meaning and qualifications that are glossed over or omitted altogether. With this in mind I am happy to send any SNZ Region or SNZ member a copy of the full report (less only a couple of personal references that were included in my query).

It is important something is done with this information.

The legal position is that the Board must always be subservient and accountable to the membership through general meetings of members. Therefore, subject to the rules of the constitution, decisions of societies must be mandated by the membership at large and by decisions made at general meetings. Rule 11.1 of the SNZ Constitution also states that the Board shall exercise all of the powers of SNZ as set out in the Constitution other than those required to be exercised in general meetings.

Three times recently the SNZ Board, led by Coulter, Byrne and Burge have acted ultra vires, beyond their powers. When a Board acts in this manner the members are put at huge risk. No one is safe. The rules are important. They have been included in the law and the SNZ Constitution for a reason. They protect the organization and its members.

However, I can do no more. I am not a Region. I am not even a member of SNZ. It is now important that the membership react to the information that the SNZ Board has acted illegally. The Board must be censured for what has occurred recently and should be replaced by individuals who do know how to act. Project Vanguard is being sold as a brave new world for swimming in New Zealand. For reasons that have been widely covered here I do not believe that is true. Worse than that, the method of Project Vanguard’s implementation has led Swimming New Zealand into a dark place. Someone must now take the lead in restoring light to the organization. The lawyer’s report suggests a way this can be done. I recommend we follow that submission. Kia Kaha.

If you would like a copy of the full Report please email me at .