A message to ASK members

Entire email message from attorney Gary Schuster on 7/7/2023:

Reading through the blizzard of emails following the ASK annual meeting and election held on June 28, I have tried to identify the major issues raised. I have no personal knowledge of what transpired and must rely on the facts as described in the emails. Those descriptions are not always in agreement. I did read the draft notice of meeting I received on June 14. Following are my observations. I am happy to revisit this if I get any facts wrong or there are important issues I have missed.

 

1. Notice of Meeting.

 

1. Timing.               It appears the notice of meeting was sent June 14, which was 14 days before the meeting date of June 28. The bylaws require at least 10 days’ notice, so the timing was proper.

 

2. Time, Date, Location.  The time, date, location, and purpose of the meeting were proper and there have been no objections to any of those. Participation by Zoom was also permitted and apparently a small number of members attended in that way. The Zoom session was recorded and some members have reviewed the recording.

 

3. Content.              

 

                                                              i.          The time, date, location, and purpose of the meeting were described sufficiently.

 

                                                            ii.          The board nominees were sufficiently identified. An improvement would be to provide biographical information and perhaps a small essay by each nominee as to their experience, goals, etc. If this was provided, I did not see it.

 

                                                          iii.          The purpose and process of electing those nominees receiving the most votes was sufficient.

 

                                                          iv.          The notice referred to the amended bylaws and directed members to the ASK website in order to access the bylaws. The notice of meeting did describe the “major revisions” made in the amended bylaws in general terms. Relying on the 2017 bylaws, Article XII, Section 1, which I believe is controlling, I find a number of deficiencies in this notice. These deficiencies are not necessarily illegal but are not best practice, and resulted in members not receiving sufficient information or opportunity for deliberation.

 

1. The notice did not adequately explain that the Board of Directors had approved these amended bylaws and they were being presented to the membership for adoption.

 

2. The notice did not explain that under the bylaws, the members could adopt or reject the proposed bylaws amendments in whole or in part, and could propose further amendments at the meeting.

 

3. Best practice is to show the current and proposed bylaws side-by-side so readers can see exactly what words are being deleted, added, or modified. Admittedly this takes work but in this age of Microsoft Word redlining it is not a terrible burden. The notice of meeting did describe the “major revisions” made in the amended bylaws in general terms, but this was not best practice. Members would be very challenged to find the specific amendments. It should also be noted that this “best practice” is not a legal requirement, nor is it required by the 2017 bylaws.

 

4. Eligibility.   The description of the deadline for becoming an ASK member in order to vote was sufficient. The description of the deadline for returning ballots was sufficient.

 

2.                  Eligibility of Voting Members.              The notice of meeting stated “Memberships must be started or renewed by June 18th to vote at the meeting or run for election to the Board.” There appears to be some controversy about new or renewal memberships coming in after June 18. I do not know what the facts are as to each individual new or renewal membership, but the rule quoted above is quite clear to me. People who were not members in good standing on June 19 should not have their votes counted. If a person handed in a check or paid by credit card on June 18, and the funds did not clear until after, I consider that person as having paid on time (unless the payment bounces). I see no problem in mailing ballots to more people than there were members, the recipients were given an opportunity to join by the deadline.

 

I saw references in emails to the fact that some people in the room who were voting may not have been members in good standing. The question whether the number of those people compared to the total would have made a difference to the result.

 

3.                  Election of Directors. There appears to be consensus that the counting of the ballots for directors was transparent and proper.

 

I saw references in emails about the vote on term limits having an impact on those who could be elected at the meeting. I would say that any vote on term limits would have prospective, future impact only, and would not apply to an election for directors being held on that same day. This conclusion is supported by Not-for-Profit Corporation Law section 702(b)(2). That section says that any action to reduce the number of directors on a board shall not shorten the term of any incumbent director. Although that is a different factual situation, it similarly expresses the general rule against ex post facto or retroactive rulemaking.

 

4.                  Bylaws amendments.  There is obviously contention around voting for the bylaws amendments. It appears that voting was handled differently from the voting for directors. I really cannot determine what the facts are. The proper way would have been (i) someone makes a motion to adopt the bylaws, (ii) that motion is seconded, (iii) discussion, questions, answers, then (iv) calling the vote.

 

Was there discussion and debate about the merits and demerits of the proposed amendments to the reasonable satisfaction of the assembly? The vote should not be called until this is so.

 

There are several acceptable ways to vote at a meeting. https://en.wikipedia.org/wiki/Voting_methods_in_deliberative_assemblies

 

1. Voice vote. The chair asks all those in favor to say Aye, then those opposed to say No. The chair decides who prevails.

 

2. Rising/Hands. If the above is too close to call, the chair asks everyone in favor to stand or raise their hands, and that is counted. Then the same for the no votes.

 

3. Written ballots.

 

The emails indicate that Kathy and Richard counted votes but unless I missed it there was no indication of the result. What was the result?

 

As mentioned in one of the many emails, democracy is messy and there is often some chaos in elections. Elections should not be invalidated unless there were very serious deficiencies. The election for directors appears to have adequate. I am still unclear on what actually happened with regard to the bylaws amendments. If you have more information for me I will be happy to consider further. Please let me know if you have any questions.

 

 

 

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Gary M. Schuster. Esq.
 Partner
J&G Law, LLP
158 Orange Ave., P.O. Box 367
Walden, NY 12586