[SCCC] Fwd: [CQ-Contest] FCG Letter to ARRL BOD

[Bruce Horn]

FYI: More detailed comments on legal issues with the ARRL's Articles and By-Laws by WC1M

----- Forwarded Message -----
From: "Dick Green WC1M" <wc1m73 at gmail.com>
To: "Chris Plumblee" <chris.plumblee at gmail.com>, "cq-contest" <cq-contest at contesting.com>
Sent: Friday, January 5, 2018 1:28:33 PM
Subject: Re: [CQ-Contest] FCG Letter to ARRL BOD

An excellent letter from the FCG.

I would point out, however, that Article 11 of the current ARRL Articles of Association gives the BOD the power to expel any member for "good cause", though that term is undefined. This is not altogether unusual -- most employment contracts use the word "cause" but don't define it. The proposed amendments leave that provision in the Articles and adds similar language to the By-Laws (dropping the word "good", which could be problematic from a legal standpoint.) 

The more significant change is the proposed amendments that explicitly give the BOD power to remove a Director by terminating his/her membership. While one might argue that such power is implied by the current Articles (because Directors must be members), there's basis for a challenge that it doesn't apply to Directors. The amendment codifies the power. While this gives the BOD the power to overrule the will of a Division, there's an argument that the BOD needs the ability to remove a Director who disrupts the proper functioning of the Board (this can and does happen, and can't be tolerated.) I'll propose a compromise below.

It should be noted that the current Articles and By-Laws give the BOD considerable power over Board composition. The Committee on Ethics and Elections has the power to determine if a candidate is "eligible", with no definition of that term (other than a valid US license and continuous ARRL membership, both for at least four years) and no requirement to disclose the Committee's reasons for disqualification. Similarly, the Committee also has  the power to reject a recall petition by ruling that it's not "valid" (also undefined), countering the right of a majority of Division members to remove their Director. The proposed amendments make it worse: they allow the Committee to rule that a recall petition contains "false or misleading" facts, with no definition of those terms, and add lengthy delays to the recall process. The amendments strengthen the power of a minority collection of Directors -- members of the Committee on Ethics and Elections -- to keep their preferred candidates in office.

Finally, the current and proposed Articles give a super-majority of the BOD the right to amend the Articles and By-Laws. Connecticut law requires that Directors of non-stock (non-profit) organization be elected by the membership, unless specified otherwise in the Articles. Thus the Board currently has the power to transform the ARRL from a member-controlled organization to one that's controlled by a self-perpetuating Board. Such structure is typical of many non-profits, but I don't believe it was the vision of the founders of ARRL and certainly would not please the current membership, without whose financial support the ARRL would not exist.

Note that many of the proposed amendments make sense and strengthen the documents. In fact, with a couple of exceptions, the infamous Code of Conduct is very well done and is a model for how Directors/officers should behave. I wouldn't throw the baby out with the bath water. I think only a few key edits need to be done to make the proposals acceptable:

1. Add explicit language to the Articles and By-Laws requiring due process for the removal or censure of a Director or officer. I believe this would be a minor change because the proposed changes to the By-Laws require arbitration or mediation in the event of a dispute among members of the BOD/officers. This gets an independent party involved, which is the right solution. I think the wording simply needs to make it clear that this provision applies in the case of a BOD vote to remove or censure a Director or officer.

2. Add explicit rules and definitions that the Committee on Ethics and Elections must follow in order to determine that a candidate for Director is ineligible or that a recall petition is invalid. Such rules and definitions should be designed to eliminate arbitrary or personality-based decisions. Put another way, the will of a majority of Division members should not be overruled lightly.

3. In that spirit, eliminate or greatly shorten the proposed delays before a recall petition can be filed. Let democracy work.

4. When there is a vacancy due to removal or recall of a Director, the President should retain the ability to fill the vacancy, but not for the entire term, as is presently the case. Instead, a Division election to fill the vacancy should be held within six months.

5. Change the Articles so they can only be amended by 2/3 vote of the membership and make sure the member-controlled structure of the Articles cannot be subverted by BOD changes to the By-Laws. This will require a national voting mechanism, but that shouldn't be difficult in this day and age. See #5 below for another reason to have a national voting mechanism.

6. In Section 7B of the ARRL POLICY ON BOARD GOVERNANCE AND CONDUCT OF MEMBERS OF THE BOARD OF DIRECTORS AND VICE DIRECTORS in Appendix B, remove the words "adverse or" from the sentence "Even with such a disclaimer, a Board member may not make any adverse or false characterization of Board decisions that might bring the organization into disrepute."

7. Revise Section 8 SUPPORT OF BOARD DECISIONS so that it does not prevent public dissent or opposition to a BOD decision. The code of conduct does a good job making it clear that Directors/officers must accept BOD decisions and not undermine them, which is a good and appropriate rule. But there's a big difference between not undermining a decision and publicly supporting a decision with which one disagrees. It should be OK for a Director/officer to publicly state that he/she is not in agreement with the BOD decision, or even that he/she will work to change that decision, as long as the statements are made respectfully and in such a way so as not to incite anyone to undermine the BOD's decision. Members of Congress are allowed to publicly disagree with legislation. Why not ARRL Directors?

8. Eliminate the proposal to give all officers BOD voting rights. Allow the President to vote only when there's a tie. Consider giving the CEO a seat and vote on the BOD. This is more common in for-profits than non-profits, but I think it would be appropriate for ARRL, which relies so heavily on its staff. 

9. Consider a national election for President and Vice-President of the ARRL. Having the BOD elect these officers undermines the President's ability preside over the BOD and ensure that it does a proper job of governance. If this path is followed, it might be wise to amend the Articles and By-Laws so the BOD can only remove the elected President by calling for new elections (essentially a vote of no-confidence), and perhaps that decision should be subject to arbitration or mediation.

10. Amend the Articles and By-Laws to have one Vice President. Additional Vice Presidents, and their expenses, are not needed.

73, Dick WC1M

-----Original Message-----
From: Chris Plumblee [mailto:chris.plumblee at gmail.com] 
Sent: Thursday, January 4, 2018 8:56 PM
To: cq-contest at contesting.com
Subject: [CQ-Contest] FCG Letter to ARRL BOD

As indicated by k1ar, below is the text of the Florida Contest Group’s letter that was delivered by email to the entire ARRL BOD as well as the League CEO and other officials. Apologies if the reflector mangles the formatting somewhat. The letter is quite lengthy and detailed; there is an executive summary at the beginning of you want a brief overview of the issues.

73,
Chris WF3C

SUMMARY

The officers of the Florida Contest Group (FCG) have prepared this report to express their concerns about recent actions by the ARRL Board of Directors (BOD), and to make recommendations about items that are to be considered in the forthcoming January 19, 2018 meeting of the BOD.  This document will be distributed to the ARRL Board members, President and Vice Presidents of the ARRL, the ARRL CEO, members of the FCG, and CQ-Contest at contesting.com.

RECOMMENDATIONS

   -

   The Policy on Board Governance and Conduct of Members of the Board of
   Directors and Vice Directors should be revised to permit Directors and Vice
   Directors to state their opinion of BOD policies to their constituency,
   regardless of whether they support the position adopted by the BOD.
   -

   A proposal by Hudson Division Director Mike Lisenco N2YBB to revise the
   Bylaws of the ARRL to extend voting privileges on the BOD to the President,
   First and Second Vice Presidents, and International Affairs Vice President
   should be voted down or withdrawn.
   -

   A proposal by Hudson Division Director Mike Lisenco N2YBB to revise the
   Bylaws of the ARRL giving the BOD power to “eject” an ARRL member, even a
   Life Member, from ARRL membership for “cause” should be voted down or
   withdrawn.
   -

   The censure of Southwestern Division Director Dick Norton N6AA should be
   formally rescinded by the BOD.
   -

   FCG members who is also are members of the ARRL and feel the ARRL BOD is
   acting correctly in any or all of the matters outlined in this memo are
   encouraged to communicate their support to the FCG officers, and to their
   ARRL Division Director.


The Florida Contest Group (FCG) is an ARRL-affiliated club centered in central Florida with members throughout the state of Florida, and associate members across the world. With over 300 members, the FCG is one of the largest contest clubs in the United States.

The FCG counts among its members a number of former and current ARRL elected and appointed officials, headquarters staff, and Contest Advisory Committee members. We, the officers of the FCG, are writing to express our concern on behalf of our membership over 1.) The recently proposed changes to the ARRL Policy on Board Governance and Conduct of Members of the Board of Directors and Vice Directors, 2.) The censure of Southwestern Division Director Dick Norton N6AA, and 3.) Changes to the ARRL Bylaws that are due to be voted upon by the BOD at the January 19, 2018 meeting.

Regarding the ARRL Policy on Board Governance and Conduct of Members of the Board of Directors and Vice Directors, we understand why it is appropriate for the ARRL’s Board to publish a code outlining expectations and standards for its Members. However, we believe that some provisions of the code adopted in January 2017 are not appropriate for a membership organization such as the ARRL. Specifically, provisions of the adopted code inhibit the free communication between membership and elected officials. Such provisions make it difficult, if not impossible, to determine how individual Directors voted on specific issues, which in turn makes it difficult for members to decide for whom to cast their vote in Division-level elections. The ARRL Policy on Board Governance and Conduct of Members of the Board of Directors and Vice Directors makes it even more difficult to evaluate individual Directors’ voting records on issues of importance to the individual members. The Policy on Board Governance and Conduct of Members of the Board of Directors and Vice Directors should be revised to


permit Directors and Vice Directors to state their opinion of BOD policies to their constituency, regardless of whether they support the position adopted by the BOD.

Additionally, there are changes proposed by Hudson Division Director Mike Lisenco N2YBB to the Bylaws of the ARRL that would give voting privileges to the President, First and Second Vice Presidents, and the International Affairs Vice President. We are concerned this proposal will effectively dilute the vote of all individual ARRL members, as the President and Vice President positions are not directly elected by the membership.
Concurrently, this change has the potential to give additional, unelected representation to certain Divisions. At present, two of the three Vice Presidents who would be given voting privileges are from the Dakota Division. Already the smallest Division by population, this change would effectively give this Division three votes on the BOD. At this time, we do not believe there is a compelling reason to make such a change to the voting structure of the BOD. We believe this motion should be voted down or withdrawn.

Furthermore, Mr. Lisenco has proposed giving the BOD power to eject an ARRL member, even a Life Member, from ARRL membership for “cause.” Such “cause”
is not defined in the draft revision of the Bylaws. We believe this change represents a significant shift in the balance of power from the membership to the BOD. If a Director or a candidate hoping to become a Director were ejected from the ARRL, they would immediately be ineligible to serve.
Similar to the provisions of the ARRL Policy on Board Governance and Conduct of Members of the Board of Directors and Vice Directors, this change has the effect of centralizing power with the ARRL Board at the expense of the individual members. We believe this change to the ARRL Bylaws should be voted down or withdrawn.

Finally, recent actions of the Ethics and Elections Committee give the appearance of impropriety. By treating the disqualification of a sitting Director or candidate for Director as a personnel matter, the Ethics and Elections Committee effectively shields their standards for what is acceptable and not acceptable from any future Directors or Director Candidates. In so doing, the Ethics and Elections Committee retains the power to disqualify any candidate or sitting Director from standing for election or reelection at any time for any reason, with oversight only from the remainder of the Board. By any commonly-understood standard, an elected officer of a non-profit corporation is not an employee of that organization.  Mr. Lisenco, in his communication to his constituents regarding the censure of Mr. Norton, alludes to a “personnel matter” as the reason that he cannot elaborate on the details of the accusations. These accusations, heard only by the Board in a closed session, were found to be more persuasive than the recollections, both published and unpublished, of a number of other attendees. This reliance on “personnel matters” to shield the Board’s decision-making process from viewis suspect. We believe this policy, if indeed there is a formal policy of treating the decisions of the Ethics and Elections Committee as personnel matters, should be changed to explicitly make the decision-making process of the BOD transparent to the membership.

As to the case of Mr. Norton’s censure, we are aware of two eyewitness accounts to the discussions at the ARRL Forum during the 2017 Visalia International DX Convention. Both published accounts, from unrelated attendees who do not appear to have a vested interest in the outcome of the BOD’s proceedings, indicate Mr. Norton’s actions were consistent with the requirements of the ARRL Policy on Board Governance and Conduct of Members of the Board of Directors and Vice Directors. Both accounts also agree with one another in their significant details. We in the FCG and the ARRL membership in general, have been given no reason to believe the accounts of the events of the ARRL forum as publicly provided by Mark Weiss K6FG and Tim Duffy K3LR are inaccurate or incomplete. The communication from Hudson Division Director Lisenco to ARRL members in his Division indicated there were “individual

witnesses who attended the forum in Visalia who came to us [the BOD] with a different story than those released by Mr. Norton’s purported supporters.”
Mr. Lisenco goes on to say that he “will not discuss the specific reasons enumerated as they are of a personnel nature and not appropriate for discussion.”

Mr. Lisenco’s letter to his constituents greatly alarms us. Mr. Lisenco is implying the Board made their decision to censure Mr. Norton based upon facts or allegations not available to the at-large membership and which significantly contradict the publicly available accounts of the events in question.  A number of other credible individuals have indicated their personal recollections of the ARRL Form at Visalia do not contradict the published accounts of K6FG and K3LR. The weight of the evidence and the lack of transparency on the BOD’s part suggest there is an ulterior motive to the actions of a majority of the BOD. In addition, the not-too-distant disqualification of K4AC to run as a Southeastern Division Director showed a similar lack of transparency.  This perception of bias and ulterior motives on the part of the BOD is much more likely to bring the Board’s overall decision-making into question than anything Mr. Norton said or did at the 2017 Visalia ARRL Forum. Given the available evidence to date, we believe the censure of Mr. Norton was not supported by the weight of the evidence. Absent any additional evidence that contradicts the current accounts, which are unanimous in concluding that Mr. Norton did not violate the ARRL Policy on Board Governance and Conduct of Members of the Board of Directors and Vice Directors, we believe the censure of Mr. Norton should be formally rescinded by the ARRL BOD.

Although we have not yet spoken to any FCG members who support any of these proposed changes to the ARRL’s governing documents, we recognize that there may be some in an organization of our size. While our statement represents the opinions of the majority of our 300 members and the unanimous opinion of the FCG officers, we understand that individual club members’ opinions may differ. We would hope that any other ARRL member who feels the Board is acting correctly will communicate their support to us, the FCG officers, and to their Division Director.

Very truly yours,

The Florida Contest Group

Chris Plumblee WF3C, President

George Wagner K5KG, Vice President

Dan Street K1TO, Vice President - FQP

Fred Perkins K4LQ - Secretary

Charlie Carroll K1XX – Treasurer
--
Chris Plumblee
407.494.5155


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