December 23rd--Marino pointed out Article 12
March 25th--Orignal date of Marino asking UMCA about Article 12 vs. Article 3 (see below)
April 9th--Marino e-mailed UMCA's lawyer, asking about Article 12 vs. 3
April 9th--Mavis asked UMCA to answer Marino's e-mail and a few people joined the discussion (see below)
March 25th--from John Marino
To: UMCA Board of Directors
From: John Marino
One of the reasons I did not vote in the most recent BoD election was because of the UMCA's disregard for the written letter of the UMCA Bylaws indicating that a 20% quorum is needed. This was my personal way of protesting your actions as a Board. The UMCA decided to omit this Bylaw in the current election. You did hire an attorney to review this quorum issue, however per Ultra Cycling January-February, page 24, IV. Highlights of Board and Committee meetings of the Executive Committee on January 15, 2008, the hired attorneys Lew Harstead and Steve Larson, of Johnson and Repucci, LLP concluded that Article 3 Section 6 of our Bylaws indicate that no quorum is needed. Please note that the Article in question is #12, not #3.
Did you pay an attorney to review the wrong Bylaw?
Below is my original email, noting Article 12. I have presented this to four independent attorneys and all concluded that a quorum is needed. The only people in the UMCA who have not accepted this are non-legal experts. This is why I was so shocked to see that a 20% quorum or any quorum has been completely tossed out by the UMCA in the current election. I ask myself, was this intentional to get past the next election or is this merely a typo?
What is going on?
My original email of December 23, 2007
UMCA Bylaws, as published on the Ultra cycling web site
Article 12 (Note: for Sections 1 and 2, go to the Ultra Cycling web site. Click on Site Index, then scroll down to Bylaws)
Section 3: Quorum for Meetings
A quorum shall consist of 20% of the voting members of the corporation.
Except as otherwise provided under the Articles of Incorporation, these Bylaws or provisions of law, no business shall be considered by the members at any meeting at which the required quorum is not present, and the only motion which the Chair shall entertain at such meeting is a motion to adjourn.
Section 4. Majority Action As Membership Action
Every act or decision done or made by a majority of voting members present in person or by proxy at a duly held meeting at which a quorum is present is the act of the members, unless the Articles of Incorporation, these Bylaws or provisions of law require a greater number.
Section 5. Voting Rights
Each member is entitled to one vote on each matter submitted to a vote by the members. Voting at duly held meetings shall be by voice vote. Election of Directors, however, shall be by written ballot.
Section 6. Action by Written Ballot
Except as otherwise provided under the Articles of Incorporation, these Bylaws or provisions of law, any action which may be taken at any meeting of members may be taken without a meeting if the corporation distributes a written ballot to each member entitled to vote on the matter. The ballot shall:
1. set forth the proposed action;
2 provide an opportunity to specify approval or disapproval of each proposal;
3. indicate the number of responses needed to meet the quorum requirement and, except for ballots soliciting votes for the election of directors, state the percentage of approvals necessary to pass the measure submitted; and
4. shall specify the date by which the ballot must be received by the corporation in order to be counted. The date set shall afford members a reasonable time within which to return the ballots to the corporation.
Ballots shall be mailed or delivered in the manner required for giving notice of membership meetings as specified in these Bylaws.
Approval of action by written ballot shall be valid only when the number of votes cast by ballot within the time period specified equals or exceeds the quorum required to be present at a meeting authorizing the action, and the number of approvals equals or exceeds the number of votes that would be required to approve the action at a meeting at which the total number of votes cast was the same as the number of votes cast by ballot.
Directors may be elected by written ballot. Such ballots for the election of directors shall list the persons nominated at the time the ballots are mailed or delivered.
April 9th (Copies of public discussion relating the 20% quorum)
Here is some grist for the mill regarding quorum for elections. This is meant as a purely theoretical argument, in terms of what factors I might consider if I were writing bylaws for my own organization (I don't know, the National Association of Cookie Dunkers?), not as a commentary on any current situation, so take it as you will.
I can see good theoretical arguments for both requiring a quorum and for not requiring one. Obviously, participation of membership is important, so requiring a quorum for an election to be valid makes a stronger statement to membership to participate. It creates incentive for candidates and oversight committees to make sure that participation is maximized (by making it convenient, making the election widely publicized, etc) because it isn't valid if enough people don't participate. If there is no quorum requirement, it's easier for a small vocal minority to control the election if the rest of the membership is apathetic. If there is no quorum requirement, current leadership that wants to be reelected has an easier time of mobilizing a small number of members to win, in an election with very low turnout. However, there are also good theoretical arguments for not requiring a quorum. You can't force people to care and to participate, and if they don't like what's going on and still don't vote, it's their own fault. If a valid effort is made to make voting easy and convenient, to keep the membership informed, and to maximize participation, and most people still don't bother, it seems counterproductive to invalidate the whole thing.If there's a quorum requirement for an election to be valid, and current leadership don't want to step down, all they need to do is make a less-than-stellar effort at getting out the word about the election, turnout will be low, the election will be invalid, and they get to stick around. If the membership is apathetic or thinks the election is irrelevant, then turnout will always be low, quorum will never be met, and no new blood will be voted in, so nothing will change. If These are both worst-case scenarios; in ideal circumstances, it wouldn't even matter because voting would be easy and convenient, and members would inform themselves about the candidates and vote. It's only in less-than-ideal circumstances that it matters. As I see it, either scenario leaves room for unscrupulous leadership to use the quorum requirement or lack thereof to their advantage. An ideal set of bylaws, in the theoretical sense (because in practice there's no such thing), would be the set of rules that would most facilitate the transition from whatever bad circumstance might arise to the aforementioned ideal circumstance. I don't know what that ideal rule would be; I'm sure there are arguments on both sides that I haven't thought of. But perhaps it would be a useful discussion to step back and think in theoretical terms for a minute, and come up with some arguments one way or the other.
Quoting Emily O'Brien email@example.com:
"If there's a quorum requirement for an election to be valid, and current leadership don't want to step down, all they need to do is make a less-than-stellar effort at getting out the word about the election, turnout will be low, the election will be invalid, and they get to stick around. If the membership is apathetic or thinks the election is irrelevant, then turnout will always be low, quorum will never be met, and no new blood will be voted in, so nothing will change."
I have thought a lot about that senario and yes, I agree it is a potential problem. However, any organization that claims to be democratic (which all 501c3 orgs must be) that can't meet a quorum doesn't deserve to be in existence (and certainly doesn't deserve to be tax exempt). And yes, for me that includes "organizations" such as the US govt...I believe there should be a quorum requirement for ALL elections.
pvb [Paul Biron]
All right, people.
I am not a licensed lawyer, but as I understand it, the 501c3 organizations such as UMCA arein fact required by the federal to have some kind of quorum. Another, THAT wouldn't be in the UMCA Bylaws in the first place.
The 20% quorum in UMCA's Bylaws was not met in the pervious three years of elections and UMCA maybe able to legally change the quorum a long time ago instead of ignoring it then hiring lawyers using thousands of the UMCA's money instead of Marino's personal money actually mailed for this verypurpose (his check was returned to him uncashed.) Furthermore, according to the review by UMCA members's hired independent licensed lawyers, some of them specializing in non-profit organization laws, UMCA's Bylaws was actually written in a way to put the power in the hands of a few individuals. This does put a lot of things in question.
If one doesn't believe this and is serious, go hire two or more independent lawyers to review the entire Bylaw like the few I know to actually do. It has been two weeks since the question about the possible typo in the magazine first surfaced. I see that John Marino recently sent a letter to UMCA's hired lawyer relating this.
None of this is a joke and it's seriously time for more members of the UMCA government to start communicating with the UMCA members like they say they would. (Thank you for stating what youunderstood about this, Emily.)
Hello all, I apologize for not responding to this earlier, but, simply, I did not.
This is my understanding of the quorum question. Bylaw 3 supersedes 12.
A point to consider is that members can not be required to vote. That is true in all elections. Suggesting that a quorum for such a geographically diverse organization may not be practical. Another point is that not voting can also be interpreted as satisfaction with the status quo hence that is voting. As we also know the legal field is predicated on differing opinions. It is one reason I have a fairly comfortable lifestyle. Personally I know this response will not be satisfactory for some with questions. I suggest that at some point we have to accept that there are differing opinions. I can personally attest to the board's efforts to ensure fair and conflict free elections. The board can not make people vote. Perhaps viewing this as a voter issue might be another tact. Developing membership investment in any organization is one of the most difficult tasks for those who are more active. The question remains if the lack of voting is satisfaction or apathy. I would venture that with dues paying membership growth the issue is not apathy. That is a personal opinion.
Thanks for your input, Rick Hays. Yes...we could let this be, but there are still a few unfinished businesses.
After UMCA paid the lawyers $8,600 of the UMCA's money and refused John Marino's money thenwe are having UMCA members complaining about the programs suffering from this political disagreement,we do need to work things out.
It's necessary to step back and look at why we have the quorum. If the quorum is notin place, UMCA then can "legally" have only one person vote who to get on the Board of Director and this is not a making of a non-profit organization.
Also, it is noted that UMCA did things to leave the voting turnout low in the first three years by not heeding to reportingly three years of advices to print "Vote for Board Directors" on the cover of the magazines and mailing the voting packages like they finally did in the last election--only after the pressuring fromthe UMCA members. This election was the first time we are actually working on bringing the voting turnout up, but at the same time, UMCA is now empowered to select people running for the Board only after they are members for three or more years and have resumes of community service experience. If an application was turned down, this applicant can then get 30 signtures by paper mail only within a few weeks to override UMCA's decision. Some UMCA members took this to be UMCA's new way to control who gets on the Board.
All of this is complex. Thus, we are bringing it down to simple, bottomline things such as article 12. The point was that UMCA did have a chance to address their Bylaw problems for three years before it becomes sticky like now.Why didn't they do it when making amendments to the Bylaws on October 22nd 2007? That's actually to name justone Bylaw not updated back then. We still were not answered ever since January why Fred Boethling is in this particular executive committee meeting, which was a clear Bylaw violation for the current Bylaw version.
I am also a layperson, but I do understand that a quorum of some kind is needed. I don't know whether 20% was the federal standard or not, but I do think it's possible to change the quorum to something more fitting for UMCA to ensure the voting to never be "legally" shifted to at least one voter in the upcoming decade and beyond. Yes, we can't afford to have no quorum over a long term. After UMCA dumped the quorum in this March 2007 election and ignored article 12 for years, we are mainly forcing them to look at what they are doing for the long term. Yes, it's sounding like one big mess after they have lawyers saying article 3 indirected no quorum is required. (I guess it's not a typo on UMCA's part since Rick Hays said article 3 supersedes article 12, right?)
We however still want to know whether the UMCA lawyers, who were paid using $8,600 of our money (instead of Marino's) away from our ultracycling programs, were shown the article 12 at all. If article 3 was the only one shownto these lawyers despite John Marino pointing out article 12 way back in December, we have good reasons to go fix this once and for all.
Again, we can't afford having absoluately no quorum of some kind over a long term.
Mavis, The very definition of a board of directors is deciding how resources are used. It may have been the executive committee that made the decision, but again that is how boards function. To ask membership to vote on every donation and / or expenditure is simply not practical.
The impression that elections were not well publicized is difficult to address. That has not been my personal experience.
As to the choice people have made to spend personal funds that was their choice. With all due respect that is not relevant. Again legal opinions are simply that, legal opinions. Perhaps a better use of resources for those with concerns would be the hiring of a mediator, but this would also rely on the time and money of those with whom you have a conflict. At this juncture it seems unlikely that mediation would be effective.
Finally if you have any way to motivate people to vote in any election copyright the idea. Voter apathy in all arenas is of concern. We have to rely on those who do vote to elect those who govern our organizations or countries to make wise choices. If we do not like those choices it is incumbent of us not those elected to challenge more people to be involved. The simple reality is that a 20% quorum of eligible voter / members may never be achieved. That is an issue for the membership not the leadership.
From: Rick Hays [mailto:firstname.lastname@example.org]
Sent: Thursday, April 10, 2008 13:23
Subject: RE: 20% quorum???
"Mavis, The very definition of a board of directors is deciding how resources are used. It may have been the executive committee that made the decision, but again that is how boards function."
Yes, we know that is how the board functions, but that is NOT what theBylaws require:
Article 3: Directors Section 10. Quorum for Meetings
A quorum shall consist of ten of the members of the Board of Directors...no business shall beconsidered by the Board at any meeting at which the quorum is not present, and the only motion which the President shall entertain at such meeting is a motion to adjourn.
"The simple reality is that a 20% quorum of eligible voter/ members may never be achieved. That is an issue for the membership not the leadership."
Well, the membership did speak, by approved a constitution and bylaws that included a 20% quorum requirement (by my reading and that of many others, including the laywers hired by Marino).
pvb [Paul Biron]