Ex officio means “by virtue of the office” and refers to a governor role that comes with someone’s job. For example, the headteacher of a maintained school always has the right to be an ex officio governor.
Ex officio is a Latin phrase that literally translates as “from the office” or “out of the office”. The DfE gave a good definition of the term in an old publication called The Governors’ Guide to the Law.
“Ex officio governor – someone who is automatically a governor or able to attend meetings of a governing body by virtue of the office they hold, for example a headteacher, parish priest or vicar, ie: the position of governor comes with the job.”
The Governors’ Guide to the Law (2012)
Ex Officio Governors In Maintained Schools
There are only two types of ex officio governor that can exist on the governing body of a maintained school. Many schools only have one of these types.
The headteacher is always ex officio. They do not have to be a governor but there is always a place reserved for them on the governing body. If they do not take up this place it cannot be filled by another governor.
Foundation governors are sometimes ex officio. They can exist in foundation, voluntary-aided or voluntary-controlled schools and are often the parish priest.
What is the term of office for ex officio governors?
Their term of office starts from the day they were appointed to their job, but unlike other governors who have a fixed term of office of a certain number of years they have no set “expiry” date.
However, their term of office ends automatically if they leave their job.
“A person who is a governor by virtue of being headteacher of the school or who is an ex officio foundation governor may not hold office for longer than the position from which the governorship derives is held by that person.”
Constitution (England) Regulations 2012
This means the headteacher has a right to be a governor for as long as they remain the headteacher. If a governing body wanted to stop the headteacher from being a governor and the head refused to give up their governor role the only way to prevent them from governing would be to fire the headteacher!
However, an ex officio foundation governor can be removed from the board, even though they do not have a fixed term of office. In a foundation, VA or VC school your instrument of government will say who has the power to remove an ex officio foundation governor.
“The governing body may, in accordance with the procedure set out in regulation 25, remove any ex officio foundation governor at the request of the person named in the instrument of government as the person entitled to make such a request.
“A person requesting the removal of an ex officio foundation governor must give written reasons for the request to the clerk to the governing body and the governor in question.”
Constitution (England) Regulations 2012
The instrument of government will also tell you who has the power to appoint a substitute governor.
A substitute can be appointed if the original governor has been removed or if they are “unable or unwilling” to act as a governor. For example, if the parish priest is so ill they cannot attend meetings a substitute can be appointed.
“‘Substitute governor’ means a foundation governor appointed to act in the place of an ex officio foundation governor who is unwilling or unable to act as a governor or has been removed from office under regulation 21(1).”
Constitution (England) Regulations 2012
If a substitute governor is appointed their term of office is four years unless the original foundation governor becomes able to fulfil the role again (assuming they were just unable to fulfil the role and not removed from the board) or is replaced in their job by someone else.
Ex Officio Trustees In Academies
Any ex officio trustees in an academy will be listed in the articles of association. The current model articles (2021) do not list any specific ex officio positions, but do say that the standard four-year term of office does not apply to ex officio trustees.
“The term of office for any trustee shall be four years, save that this time limit shall not apply to any post which is held ex officio.”
Model Articles of Association (June 2021)
Although the main model articles don’t contain ex officio posts and neither do model articles for Catholic academies, the model articles for Church of England academies do contain (optional) ex officio roles.
Here’s the wording from model articles for a C of E academy converting from a voluntary-aided school.
“The company shall have… the following ex officio directors: [insert incumbent(s), Area Dean, Archdeacon, Diocesan Bishop if required or delete and mark “Not used”].”
Church of England Academies Model Articles of Association: Majority Version
(Note that these articles call the trustees “directors” but the role is the same; they sit on the main academy trust board.)
Academy trusts can also assign ex officio positions to committees such as local governing bodies, so for example a local governor within a multi-academy trust could be an academy employee. Check the terms of reference for each committee to see whether any of these positions exist.
Ex Officio Roles in Committee Terms of Reference
You may come across terms of reference for committees that say someone is an ex officio member of that committee because of their role on the governing body rather than their job role.
For example, terms of reference for a finance committee may say the chair of governors is a member of that committee “ex officio”.
This means that the chair of governors always has a right to be a member of that committee. If the current chair resigned your new chair would now have the right to be on that committee and the old chair would not.
Both maintained schools and academy trusts are free to set terms of reference for their committees so there’s nothing wrong with this practice, as long as the board understands what “ex officio” means in this context.
Can ex officio governors be disqualified for not attending meetings?
In a maintained school ex officio governors cannot be disqualified for missing meetings. The usual rule is that governors who are absent for more than six months of meetings can be disqualified if the board does not consent to the absences.
However, the law says that this rule does not apply to ex officio governors.
“This paragraph applies to every governor, other than governors who are governors by virtue of the office that they hold.
“A governor who, without the consent of the governing body, has failed to attend their meetings for a continuous period of six months beginning with the date of the first such meeting the governor fails to attend, is, on the expiry of that period, disqualified from continuing to hold office as a governor of that school.”
Constitution (England) Regulations 2012
As explained above an ex officio foundation governor can be removed from the board, so if this governor is missing lots of meetings check your instrument of government to see who has the power to remove them and appoint a substitute.
In academies the rules will depend your articles of association (for trustees) and terms of reference for any committees such as local governing bodies.
Are ex officio governors disqualified for some criminal offences?
Yes. In all types of school a person must meet certain criteria to join the governing body. There is a full list of disqualification criteria in this article but they include specific criminal convictions and being removed from office as a charity trustee.
There are slightly different criteria for maintained schools and academies but they apply equally to ex officio governors/trustees.
Can ex officio governors vote?
Yes. Ex officio governors and trustees have the same voting rights as any other governor or trustee.
Do ex officio governors count towards the quorum?
Yes.