[SCCC] k1VR Comments (e-mail format)

[w6yi at aol.com]

Proposed ByLaw 46 is a Terrible Idea
By Fred Hopengarten, Esq., K1VR
Past Director, New England Division
Why?
 It keeps secrets from members
 You don’t know what it says
 Sometimes, you can’t even find out what it says
 Prevents Board members from talking to old friends without seeking permission
 Can overturn elections
 An accused has little, if any, ability to defend himself before banishment
 It is illogical when it prevents seeking input from members
 Violates state law
 The goal is elimination of dissent from the Board.
 It is designed to be revenge against meddlesome Directors, and it would prevent new thinkers
from being elected
Second Verse, Same as the First
This was tried before. This Gag Order Has the Same Faults as the Last Attempt, plus some new ones!
So Happy New Year, but the New Year is 2017 or 2018.
In 2017, ARRL President K5UR asked for the creation of a Code of Conduct. In 2018, N2YBB and
W3KD, plus K5UZ, tried. Four Directors who favored secrecy, and were then up for election, were
defeated. Later in 2018, the Board suspended the proposed “gag order.” But it is never too late for a bad
idea to resurface.
What is in Proposed ByLaw 46?
Proposed ByLaw 46 may be found at
https://westgulfdivision.org/westgulfdivision-org/motion/r1.html, and https://atldiv.org/p2.pdf. It is a
Motion by Midwest Dir. Zygielbaum, K0AIZ, and Pacific Dir. McIntyre, K6WX. But wait, there’s more –
“ARRL Board Member Statement on Authority, Responsibility, and Expectations, herein referred to as
the “Board Member Statement” [Statement], is, by this reference, incorporated in these By-Laws.”
Dated January 19, 2024, the Statement is also on both websites.
It turns out that “What is BL 46?” is a challenging question, because after incorporating the
Statement in BL 46, the Statement incorporates “a revised Conflict of Interest Policy, and provides
illustrations and examples from existing ARRL governing documents.” the Statement also refers to at
least four other documents as source material to control behavior, including the “Directors Workbook”
– which is a secret, and you, the members, as well as any Candidate for Director or Vice Director who is
not an incumbent, can’t read it! Proposed BL 46 also incorporates ARRL Standing Orders.
Proposed ByLaw 46 is a Terrible Idea
Comment on ARRL Standing Orders
According to the Statement, “ARRL Standing Orders” are now a “governing document,” and
incorporated into proposed BL 46. Until K1VR released the Standing Orders into the wild, they were, like
the Directors Workbook, also secret.
After K1VR released the Standing Orders, Don Arthur, M.D., Esq., K1DCA, Vice-Adm., U.S. Navy (ret.),
volunteered to put them into readable order. He deserves the undying thanks of the Board and ARRL
members. See https://www.arrl.org/files/file/About%20ARRL/ARRL_Standing_Orders_2022-01-22.pdf
Among other Standing Orders with unfindable references is:
2.3.2 [SO #11-1.26] The Board adopts the policy on electronic recording of ARRL Board and
committee meetings recommended by the Executive Committee, effective as of the end of this
meeting.
That “policy on electronic recording” is a secret, not reflected in the Standing Orders or ByLaws. If
someone finds it, please let me know. In any event, that policy is incorporated into the Standing Orders,
which would be incorporated into BL 46. Violating this policy, which you don’t know and can’t read,
could subject a Director or Candidate to banishing.
WORSE, according to the Standing Orders, which are now a “governing document,” “Standing
Orders are not Bylaws, so they may be amended or deleted at any time, either permanently or
temporarily, by normal action of the Board or the Executive Committee.” This means that BL 46, which
cannot be amended by less than a 2/3-vote of the Board, incorporates a document which can be
amended or deleted at any time by only a majority of the Executive Committee. That’s just two people.
Proposed ByLaw 46 is a Terrible Idea
It misstates CT law, which is duty in the manner the Director believes to be in the best interests of
the corporation. Not what other Directors think. C.G.S. § 33-1104
Division elections won’t matter – only votes of 2, 8 or 10 Board members will matter. Violates C.G.S.
§ 33-1088. By violating C.G.S. § 33-1038 (Ultra Vires), any member can sue to stop it
It converts a secret document (the Directors Workbook) into an ARRL ByLaw, and keeps the
document secret! And secrets in the ARRL Standing Orders are also kept secret.
It binds candidates, who can only read the Directors Workbook if elected. By a vote of 10, it could
prevent a potential Candidate from running! Perhaps forever.
It converts essays by people we don’t know, who don’t know us, and we can’t find, into an ARRL
ByLaw
Board Members and candidates can’t talk to old friends or clients without permission from CEO or
President!
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Proposed ByLaw 46 is a Terrible Idea
Before We Start: What are “Votes of 2, 8, or 10?”
Votes of 2: The Ethics and Elections Committee has 3 members. A majority is 2. E&E is hand-picked
by President. If E&E thinks your purposes and the corporation’s purposes are not aligned, it can declare
a violation of fiduciary responsibility. “The Ethics and Elections Committee has sole authority and
responsibility to review allegations of Board Member violation of fiduciary responsibility . . .” What is
“fiduciary responsibility”? Well, ByLaw 46 invents a new meaning
Votes of 8: The Board has 15 members. A simple majority is 8. “A simple majority vote of the Board
shall be required to affirm a recommendation of less than full recusal . . .” Proposed 46 (e)(3)(ii).
Votes of 10: A 2/3 vote of the 15-member Board is 10. “A 2/3 majority vote of the Board shall be
required to affirm a recommendation of ineligibility or full recusal . . .” Proposed 46 (e)(3)(i).
Violates CT Law re Director Duties
C.G.S. Sec. 33-1104. General standards for directors. (a) A director shall discharge his duties as
a director, including his duties as a member of a committee: (1) In good faith; (2) with the care
an ordinarily prudent person in a like position would exercise under similar circumstances; and
(3) in a manner he reasonably believes to be in the best interests of the corporation.
NOTE THE TEST: “he reasonably believes to be in the best interests of the corporation.” But that is not
what Proposed BL 46 “Duty of Care” says. The new test: votes of 2, 8, or 10.
Statement p.31 says the test is “doing no harm to the organization and working for the benefit of
the organization,” which, according to Proposed BL 46 (e), will not be determined by the Director’s
reasonable belief, but rather by votes of 2, 8, or 10 Board members from other divisions. This is a
change from in the standards for directors found at C.G.S. § 33-1104 .
https://www.cga.ct.gov/current/pub/chap_602.htm#sec_33-1104
And who will decide? Proposed BL 46(e): “The Ethics and Elections Committee (E&E) has sole
authority and responsibility to review allegations of Board Member violation of fiduciary responsibility.”
E&E is hand-picked by the President.
Violates CT Law re Removal of a Director
C.G.S. Sec. 33-1088. Removal of directors by members or directors.
(a) The members entitled to vote for the election of directors or, if there are no such members,
the directors, may remove one or more directors with or without cause unless the certificate of
incorporation provides that directors may be removed only for cause.
(b) If a director is elected by a class of members only the members of that class may participate
in the vote to remove him.
1 The Statement is badly crafted, in that it is 11 pages long but has no section numbers, no table of contents, and is
hard to reference.
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Proposed ByLaw 46 is a Terrible Idea
For ARRL, a Director is elected by division membership. ONLY THE DIVISION MEMBERSHIP may
participate in the vote to remove him. https://www.cga.ct.gov/current/pub/chap_602.htm#sec_33-
1088
But, you may say, Proposed BL 46 does not propose removal, only “full recusal.” I reply: Pray tell,
what is the difference? There is NO DIFFERENCE, because if there are 10 votes (2/3) for “full recusal”
then Proposed BL 46(f) kicks in:
Any Board Member determined to be ineligible under either section (d) or (e) above shall
immediately vacate their Board position. The vacant Board position will then be filled as
provided in these By-Laws and the ARRL Articles of Association.
CONCLUSION: Proposed BL 46 is illegal under Connecticut law because it allows “full recusal” and
vacating by 10 votes of Board, not the required votes of the members under C.G.S. § 33-1088(b). “Full
recusal” or vacating is the equivalent of “removal” because Proposed BL 46(f) declares the seat
VACANT. (And that, dear friends, means BL 46 is ultra vires.)
Why Does the “Statement,” Now Incorporated into BL 46, Expand a Director’s Duties Clearly Stated in
State Law?
Statement, page 7:
“. . . to ensure candid deliberations and effective strategic and tactical planning . . .”
As defined in Section 33-1239 of the Connecticut Revised Nonstock Corporation Act, access to
corporate records can only be used for these purposes, but not for any other purpose or in any
manner that would violate any duty to the corporation.
This is a clear case of hiding the ball. The problem is that there are differences between what is a duty
under state law (§ 33-1239), and new duties imposed by the Statement.
[Side note: I suspect this arises from requests a while back from N6AA for records that proved
embarrassing. Not harmful, just embarrassing.]
Well hidden, this is an attempt to EXPAND the “duty” of a director to the point where you can expel
him and get rid of the pest who seeks member input (a “meddlesome priest” perhaps?).
Despite what is written in the Statement, C.G.S. § 33-1239 does NOT require confidentiality about
deliberations on motions. Using corporate records to formulate a motion for Board consideration is a
perfectly proper use. Keeping motions, and the positions taken by Directors, confidential (read: secret),
does not help – it can hurt effective strategic planning.
Obviously aimed at some imaginary horrible that occurred in the past, which the proponents never
want to see disclosed again, one wonders: What are they trying to hide? Can someone name a
disclosure from the past that harmed the League? Or is this just a blatant desire to operate in secret –
like the recent Board vote to require five votes in favor of a “recorded vote.”
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Proposed ByLaw 46 is a Terrible Idea
Proposed BL 46 Includes:
 An expansion of the duties of a Director beyond C.G.S. § 33-1104, for the purpose of expelling
and banning a Director.
 The ability to expel and ban a Director by a 10 votes of the Board, in contravention of C.G.S. §
33-1088.
 Secrecy beyond the requirements of C.G.S. § 33-1239.
These three items are Ultra Vires. But more, they are BAD POLICY, defeated once before (for good
reason), now back from the dead.
Ultra Vires means “beyond the powers”
Ultra Vires describes an action that exceeds the power allowed by law
C.G.S. Sec. 33-1038. Ultra vires.
(b) A corporation's power to act may be challenged: (1) In a proceeding by a member or
director against the corporation to enjoin the act; . . . or (3) in a proceeding by the Attorney
General . . . to enjoin the corporation from the conduct of unauthorized affairs.
(c) In a member's or director's proceeding under subdivision (1) of subsection (b) of this section
to enjoin an unauthorized corporate act, the court may enjoin or set aside the act, if equitable
and if all affected persons are parties to the proceeding, and may award damages for loss . . .
(d) The Attorney General may, upon his own information or upon complaint of an interested
party, bring an action in the name of the state to restrain any person from purporting to have,
or exercising, corporate powers not granted.
Source: https://www.cga.ct.gov/current/pub/chap_602.htm#sec_33-1038
BL 46 will include Requirements from the Directors Workbook
According to page 1 of the Statement, the Directors Workbook is now a “governing document.” But
what is the Directors Workbook? Answer: It’s a secret!2 But a non-incumbent Candidate who violates it
cannot be a Director, and can be barred from EVER becoming a Director. Not only that, but a Candidate
must affirm that he will abide by what he cannot read before being elected. Catch-22 anyone?
Inventing Law from “Special” Sources
Proposed BL 46 incorporates the Statement – which converts essays by people we don’t know
(National Council of Nonprofits, a lawyer named Horak, an anonymous Harvard Law School forum
2 Don’t believe me? Search for Directors Workbook on the ARRL website. Find https://www.arrl.org/members-
only/Page/4162. Read: We're sorry, the page you are trying to view is not accessible. The page you're trying to
view is for ARRL Officers or ARRL Vice Directors or ODV-Special or ODV or ARRL Directors or Super Admin only.
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Proposed ByLaw 46 is a Terrible Idea
reference), people who certainly don’t know ARRL (and may have never dealt with a contested-election
Board), and people we can’t find, into an ARRL ByLaw.
Example: Statement, page 3:
Common corporate practice ascribes to a Board of Directors the authority to make policy and
work at the level of strategic decisions. Individual Board Members are not in a position to
undertake the daily ordinary course of business tasks. Management is specifically defined to
include the non-director senior level employees of the corporation. Directors are not managers
and they are not authorized to direct staff. (Part III of The TANGO Nonprofit Method written by
John M. Horak: www.tangoalliance.org/jack-horak)
This is a book by Jack Horak, Esq. The “common corporate practice” is not cited. If you want to read the
original, to see if it really applies to ARRL, you must buy the book and find the citation. This converts the
thoughts of a lawyer we don’t know into a ByLaw, with failure punishable by removal and banishment
for life. And did we mention no good opportunity to defend?
Next, see Statement, page 2:
Duty of Confidentiality -- Directors have a fiduciary duty to maintain confidentiality to ensure
candid deliberations and effective strategic and tactical planning. [Harvard Law School Forum
on Corporate Governance]
This tells us that the drafters think that only secrets from the members, without input from them (our
voters) can achieve effective strategic planning. Hah!
But it is Harvard! “I would rather be governed by the first 2,000 people in the telephone
directory,” he said, “than by the Harvard University faculty.”3
Is this concept of confidentiality invented? An interpretation, or a quote? I went to
https://corpgov.law.harvard.edu/ and searched for “to ensure candid.” No joy.
Where did the concept that you should not consult the membership come from?
3 Source:1961 January, Esquire magazine, William F. Buckley, Jr.: Portrait of a Complainer by Dan
Wakefield, Quote on page 50, Esquire, Inc., New York.
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Proposed ByLaw 46 is a Terrible Idea
Statement, page 2:
Duty of Loyalty – Directors must ensure that corporation activities are advancing its mission.
They must recognize and disclose conflicts of interest. Directors must make decisions that are
in the best interest of the corporation and not in the best interest of a board member or any
other individual or entity. [National Council of Nonprofits]
Query: How about an entity like the New England Division? What if a majority (8) of the Board thinks
that hiding a scandal by a Director or Officer is in the best interests of the corporation? Can the best
interests of the corporation and the members diverge? Golly, as a Director I always thought I should
follow Connecticut law (C.G.S. § 33-1104).
Can’t Talk to Old Friends
Statement, page 7:
Without a formal TOR [Terms of Reference] in place, contact with . . . [major ARRL donors
(contributions totaling $10,000 or more received from individuals)] by Board members or
individuals will be upon written authorization of the ARRL President, or CEO.
I’ve been licensed since 1956 and I’ve come to know a lot of radio amateurs. I have a lot of friends that
I’ve known for a very long time. According to the Statement, I will now have to beg young Rick (the
President), or young Dave (the CEO), for permission to talk to my buddies. As the “test” is now
“contact,” Board members will be forced to scrub their holiday card lists. No more “HB2U.” Sweepstakes
QSO’s will now subject a disfavored Board Member to discipline. And, if a Board member: Do not work
K9CT, K3LR, or W3LPL in a contest without a formal TOR. Should a Board Member be trusted to chat
with old friends?
Something else bothers me, which is the assumption that these individuals who have contributed
“$10,000 or more” should be kept in the dark about controversial issues. Once the word is out in the
listserv world, you don’t think they are going to hear about it? This TOR rule means that it is OK to
contact 150,000-plus members, but not the smart, successful, and philanthropic members. Why can’t
they be trusted to evaluate a controversy?
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Proposed ByLaw 46 is a Terrible Idea
Did the proponents think about how many friends will be cut off without a TOR requested from and
granted by Rick or Dave?
I checked the Maxim Society list in the Annual Report for 2022.While the following QSL cards are
only illustrative, I would list a total 32 Maxim Society donors who are long-term friends and
acquaintances (defined as people I’ve dined with, visited, or who have visited me). Gee whiz.
QSL from 1958:
(Now W1FJ, QSL from 66 years ago)
1961:
1962:
1962: (Now W3LPL, QSL from 62 years ago)
PLUS, how am I supposed to know if I’m chatting with one of the 27 anonymous donors of over $10,000.
They are anonymous!
Can’t Talk to Clients or Co-counsel Without Mommy’s Permission!
I am a lawyer with clients or co-counsel who are hams. The forbidden list includes five clients, and
an FCC lawyer (N3JT) I work with frequently.
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Proposed ByLaw 46 is a Terrible Idea
And again, how am I supposed to know if I’m chatting with one of the 27 anonymous donors of over
$10,000. They are anonymous!
Conclusions
Some parts of Proposed ByLaw 46
 are flat out illegal (e.g., removal), and others
 are bad policy (secrecy, banning, gagging contact with old friends)
 require obedience to rules you can’t read and which can be changed at any time
Just like the last “Code of Conduct” try in 2018, this Motion cannot be “tweaked” to make it legal or
better policy. It does not clarify Board Member responsibilities, it obscures them. It ultimately makes the
decision solely in the hands of E&E, a hand-picked group, with essentially no rules. It should be
withdrawn or defeated, and never see the light of day again.
Bad Boys Bad Boys Whatcha Gonna Do When They Come for You?
You think I’m kidding about the underlying purposes of Proposed Bylaw 46? Using the Ethics &
Elections Committee, Members of the ARRL Board “secrecy party” have already tried (and thankfully
failed) to oust N5AUS, N6AA, N2RJ, K3RF, and K1VR. And those are just the people attacked in recent
times. This Motion is designed to make it easier next time. How’s that for protecting the “good old
boys”? The proponents of the Motion remind me of the quote oft-attributed to King Henry II, on
December 29, 1170, about Thomas à Becket: “Will no one rid me of this meddlesome priest?”
https://www.historyextra.com/period/medieval/will-no-one-rid-me-of-this-meddlesome-priest-truth-
henry-ii-quote/ (The Official Website for BBC History Magazine)
Is this what you want? If your answer is no, I urge you to contact your Director and urge him or her
to vote NO.
While you are at it, tell your Director and Vice Director to concentrate on increasing ARRL
membership to >20% of licensed U.S. hams.
-Fred K1VR
P.S. As mentioned above, so you can’t be accused of reading an incomplete or excerpted version of the
original governing documents:
* Proposed ByLaw 46 can be found at
https://westgulfdivision.org/westgulfdivision-org/motion/r1.html and https://atldiv.org/p2.pdf
* ARRL Board Member Statement on Authority, Responsibility, and Expectations, dated January 19,
2024 (11 pages) can be found at
https://westgulfdivision.org/westgulfdivision-org/motion/ARRLBoardMemberStatementonAuthority
ResponsibilityandExpectations.pdf (the original)
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Proposed ByLaw 46 is a Terrible Idea
* ARRL Rules and Regulations can be found at https://www.arrl.org/arrl-rules-regulations . As ByLaw
46 incorporates the Rules & Regulations, and applies to Candidates, you should know this: “All
matters with respect to campaigns, including remedies for issues that arise, will be conclusively
determined by the Ethics and Elections Committee.” (A vote of two, as E&E has three members, all
hand-picked by the President of ARRL.)
* ARRL Standing Orders, previously secret, and which can be changed at any time without a full Board
vote, can now be found at https://www.arrl.org/files/file/About%20ARRL/Standing%20Orders
%202023-07-22.pdf
* You can try to access this last governing document, the ARRL Directors Workbook, at
https://www.arrl.org/members-only/Page/4162 but you will see: “We're sorry, the page you are
trying to view is not accessible. The page you're trying to view is for ARRL Officers or ARRL Vice
Directors or ODV-Special or ODV or ARRL Directors or Super Admin only.” To be clear: If you are a
non-incumbent Candidate for Director or Vice Director, you must pledge allegiance to a document
you aren’t allowed to read.
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Proposed ByLaw 46 is a Terrible Idea
**
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