Letter Clarifying Recent Legal Actions
From Eileen Buholtz, Attorney
Dear Liane, w/ copy to RPO attorney Stiller: Your response to Ms. Rice’s recent post on the rpocommunity’s Facebook page correctly states my conclusions about the RPO, Inc.’s conduct about its annual meeting, but not my reasons. You are correct that RPO, Inc.’s stance regarding its annual meeting is dictatorial. Not only Robert’s Rules of Order but general parliamentary procedure allow write-in’s on ballots, regardless of any restrictions on nominations. Writing in candidates’ names on ballots is a matter of voting, not a matter of nominating, and cannot be proscribed.
Moreover, RPO, Inc. owes Mr. Fink and me a complete list of members with addresses for the year 2012; RPO, Inc., owes the membership a validly run annual meeting of members; and RPO, Inc. deserves more diversity on its board of directors.
My reasons and the facts on which they are based are these:
* The bylaws define “member”, but RPO, Inc. improperly set the membership year, both as to the start date and the end (record) date for
determining who is eligible to vote in the 2013 annual meeting of members.
* First, RPO, Inc. violated the procedural requirements of the Not-For-Profit Corporation Law for setting the record date (which is the cut-off date for members eligible to vote). RPO, Inc.’s executive committee apparently voted by email on Dec. 19-20, 2012 to set the record date. The NFP Corp. Law requires votes by email to be unanimous and in writing. The vote was not unanimous. The notices went out before RPO, Inc. made any attempt to correct their error.
* Second, as you note, RPO, Inc. routinely sets the membership year as Jan. 1 to a date in December that systematically cuts off the presumably large number of donors who give during the last week in December.
* With regard to the facts: on Dec. 20, 2012, attorney Thomas Fink made his first request to RPO, Inc. for the names and addresses of members entitled to vote at the 2013 annual meeting of members.
* By January 8, 2013, RPO, Inc. mailed the notices of annual meeting and ballots which started arriving in members’ mailboxes on January 8, 2013. The notice stated that the board had set the membership year as starting January 1, 2012 and ending December 21, 2012 at 5 pm.
* The community meeting of citizens concerned for RPO, Inc.’s welfare which I moderated took place on January 10, 2013.
* On January 15, 2013, I asked RPO, Inc. for minutes of or waivers or consents to any meeting that set the record date of Dec. 21.
* On Jan. 17, 2013 RPO, Inc. gave me minutes from only September and October, 2012, which contained no information about the membership year or the record date.
* Also on Jan. 17, RPO, Inc. responded to attorney Fink’s requests going back to December 20 for the names and addresses of members entitled to vote on Jan. 23 meeting: RPO, Inc. provided a list of only names of members for only the period Sep. 1, 2012 through Jan, 11, 2013.
* On Jan. 22, 2013 I filed my summons and complaint and my order to show cause to stay the annual meeting on January 23.
* At the 1:30 pm meeting on Jan. 23 with Justice Fisher, Attorney Stiller stated that “there was an email vote with respect to the record notice that’s permitted under Not-For-Profit Corp. Law section 614, the action without meeting, consented to by all the parties” and board secretary Mr. Smith confirmed that the email vote was done on Dec. 19. Justice Fisher denied my request to stay the meeting and set Feb. 4, 2013 for argument on the balance of my request (a preliminary injunction that included setting a correct record date, re-doing the meeting, and directing that write-in ballots be counted).
* At the ostensible annual meeting held on Jan. 23 at 5 pm in Hatch Hall, RPO, Inc. committed more mistakes.
* On January 29 and 30, and on the morning of Jan. 31, I sent out subpoenas duces tecum (subpoenas to produce documents) on notice to attorney Stiller to three people with affidavits to authenticate the documents, in preparation for the Feb. 4 meeting with Justice Fisher.
* Early in the afternoon of January 31, attorney Stiller served the affidavit of Jules Smith which acknowledged that the email vote on Dec. 19-20, 2012 was not unanimous, that the executive committee had attempted another vote on January 11, 2013 (the day after the community meeting and probably a week after the notices and ballots had been mailed), and that on Jan. 24, the ostensible newly elected board ratified the record date. Neither Ms. Stiller nor Mr. Smith objected to my subpoenas.
* Late in the afternoon of January 31, Justice Fisher questioned my subpoenas duces tecum and proposed affidavits, and Ms. Stiller moved on Feb. 1 for argument on Monday Feb. 4, to quash them, to suppress the documents, and to dismiss of my suit.
* On Feb. 4, Justice Fisher vehemently disapproved of my subpoenas duces tecum and ruled that I cannot use the documents that I had requested from the witnesses. My reasoning and legal basis for my subpoenas which I submitted to the court are posted at rpocommunity.wordpress.com and are on file with the court.
* Also on Feb. 4, Justice Fisher denied my requests brought on in my pre-meeting suit and told me to proceed on a post-meeting basis. I have proposed to attorney Stiller alternate procedural ways to proceed and she has now responded.