The Trust has the power to appoint MEDs, and has used the power now and before.  This power is explicit in the Articles of Association.  Anybody can acquire the Articles of Association of the Trust. They say that "Member Elected Director means a director of the Company appointed pursuant to Article 52 of these Articles". Article 52 clause (d) says "The Directors shall have power at any time to appoint any person to fill a vacancy in the number of Member Elected Directors (whether arising by resignation, death or otherwise) provided that the appointment shall have been approved in writing by Holdings and such approval shall have been delivered to the Secretary". "Holdings" means IBM United Kingdom Holdings Limited and "Secretary" is currently David Newman. There are no constraints on the "any person" being employee, retiree, or neither.

The letter says that the Trust "concluded that it did not have the authority to appoint Mike O'Sullivan to the Trustee Board". Nobody has said that the Trust legal adviser told them they did not have the authority.  Nobody has said the Occupational Pensions Regulatory Authority told them they did not have the authority.  Nobody has said that IBM would have vetoed the appointment.

Without more information from the Trust, members may prefer Mike O'Sullivan's opinion - that the Trust did have the power to appoint him, but chose not to.

The trustee election was held under the Single Transferable Vote (STV) system.  One of the advantages of this system is that the voter preferences give more information than a simple one-voter-one-vote system.  So the data from the election can be used to recalculate who should take the place of somebody not taking up their position.  The Electoral Reform Services will do this (for a small fee presumably).

The letter says "The only employees to receive more votes than Elaine were Gavin and Mike".  That either means the Trust people don't understand STV, (unlikely), or they thought members did not understand STV.  The "votes" that are input to the STV calculation are preferences so they are not of equal weight; and some voters will have given more preferences than others.  The sentence is probably a distorted way of saying "The only employees ranked higher than Elaine by the STV calculation were Gavin and Mike".   (Although there is no sense in calling the numbers that provide the final STV rankings "votes" - they are not even integers.)  Using the originally calculated STV ranking is a poor test compared with recalculating on the basis of Brian, Dave and Gavin being elected for certain, Mike (and other current ineligibles) being not elected for certain.  The recalculation of the fourth MED is genuinely democratic in the sense that it is the best possible use of the preferences cast.  The alternative of using the ranking from the first calculation (which the Trust appears to have done) disenfranchises some voters who had Mike as an early preference in their list.  In the original calculation their input went (it turns out fruitlessly) to elect Mike.  In a recalculation their input would not be ineffective, as their later preferences could affect the outcome. 

So the history is that when the Trust first had the problem of MED replacement they neither took the next ranked nor did a recalculation; they just chose somebody.  This second time they have used the election results, but in an inferior way.  Perhaps the third time...?

Having reached this point, it is best if we all act as if Mike had not stood and Elaine had been elected in the first place, but there is still the question of lessons to be learned.

The potential need for replacements has always been apparent.  The legal agreement we have with IBM about how the election will be done does not cover it.  This is because the regulations about what has to be in the agreement don't require members to be told how replacements would be chosen.  (IBM followed its usual rule of not conceding an iota of corporate privilege that it wasn't forced to.)   It can be argued that the members fell short because few of them objected to the incompleteness of the proposed agreement - but remember there was more "trust & confidence" in those days.

The potential need must have been apparent in the run up to the recent election, particularly in view of the job losses at Greenock.  Again, no procedure about replacement was put in place.  There is an obvious risk in not pre-planning.  A "we will deal with that if and when it happens" approach means that the decisions have to be made when the election results are known.  This allows cynics to infer that the choice of method was influenced by the known results.

If the Trust developed more policies, and disclosed them to members, in this area and others, that would be a positive contribution to trust & confidence.