I think you omitted Ray Plotecia from that list. He's posting on rec.sport.triathlon.

Larry

"Some people are saying that Steve Locke turned his head on this type of electioneering while he had favorable boards but he only became concerned with the current group."

i think it sort of crept up on all of us. nobody thought very much about it in the beginning, because it wasn't really abused. but it's gotten pretty ridiculous, and i think locke and i and everyone just got disgusted with it. the election practices were an acquired distaste.

"Had you heard the Ray Plotecia statement about Ellsworth-Gattis wanting the Executive Director's job?"

i asked val straight out, about 3 months ago, whether she wanted it. she said everything but yes, except she very definitely did not say no. basically, yeah, she seem to want the job without saying so directly. but she has absolutely no credentials specific to this job that i can see, and she's not going to move to colorado springs from louisville, so i think it's a non-starter.

"did val run ... knowing she would be riding the tactics of Jim Girand and unseat rival Buxton?"

i don't know. i didn't really think about it. i think burke was the hope for central. but that never panned out, because there were no girand campaign workers in central and burke didn't have a big enough constituency of voters on his own. but i don't really know.

"Was anything promised the elites to make them vote with the majority?"

i would very definitely assume so. otherwise, why would they vote as a bloc, twice? but i don't know for sure, it's just an assumption on my part. after having spent better than 15 years working with pro athletes i honestly don't have a lot of expectations out of them as a group.

"Since there appears there will be a lawsuit, will Alan Geraldi be the board's attorney since it will be his opinion that will be tested?"

i suspect not, because alan's got a day job.

"Why is it that Eric Bean (on Duathlon.com), Mandy Pagon and Jack Weiss (on Slowtwitch) are the only board members with enough guts to, at least, field questions?"

mandy's not a board member. so there's only 2 that are fielding questions. the other 9 aren't. i'm not sure. historically the board has been a bunch of pussies. not this board, all former boards that i've been associated with. supreme pussies. shameful pussies. in this case, tho, with legal issues pending, perhaps people are clamming up pending what might happen. plus, i think gattis, et al, are hoping things just die down on their own.

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Dan Empfield
aka Slowman

Dan:

OK - we have not agreed on everything (fine...very few) but that post was unbelievable. You states that our elite triathletes on the board must have been bought off or bribed to have voted the way they did (granted, you didn't come out and state it...you merely strongly inferred it). Where the F is your proof that any of those individuals ever compromised their integrity in exchange for personal benefits? I guarantee you that you have none. Instead, you state that becuase these elite individuals (who were more intimately familiar with the facts and legal opinions than you) MUST have been bought because of the simple fact that they dared have an opinion that countered your position. That is probably the most disgraceful statement I have read. No, certainly couldn't be that these three educated and informed adults all reached the correct decision per the law (which you have yet to disprove or offer one argument against such an analysis) - it had to be a promise to them.

I don't know what I find more disgusting - that our elites would accept such bribes - or that you would make such unfounded accusations merely because they don't share your viewpoint.

As for Val - I don't know if she wants the job or not. And what if she does? Is that wrong? Remember - SHE DIDN'T VOTE! She was silent. But, even though you admit that she never told you she wanted the position, you go out of your way to paint the picture that she forced Steve out due to her own agenda. Come on Dan - is this Slowtwitch for triathletes or are you just writing for "enquiring minds"?

As for my participation. No, I am not the USAT attorney. I never have been and, in fact, have taken legal positions against them on certain grounds. They have their own counsel. That being said, I would consider joining their legal team if asked - not just for this issue, but for all issues as I believe that would benefit our sport.

Alan

"They have their own counsel."

Alan, you keep beating this dead horse of a legal opinion of yours which was made AFTER THE FACT. Let's say Dan and I agree with you that the election was legal on what was voted on in the June meeting. But what about the opinion of "their own counsel" before the election? Did your legal opinion deal with his legal opinion or did your legal opinion just deal with the vote that flew in the face of Backer's opinion. The board asked for that opinion and didn't take it and it was the elites who threw their weight behind opposition to that opinion.

Bob Sigerson

Bob:

I keep beating the dead horse? You tee up a shot for Dan by asking, since the elites didn't agree with Dan's position, were they bought off. Dan replies that they must have been. No proof, no evidence, nothing - basically a complete fabrication intended to malign the good names of those who would dare to follow the law, their obligations under the law....even though such a position counters one held by Dan (and apperantly you). The elites voted the way they voted because they had little choice. They had to confirm the election as valid unless the process violated the law or a by-law, which it didn't. As such, they had no choice. But because they upheld their duties - you and Dan all but accuse them of accepting bribes.

The board received the opinion before the election. They considered it. Granted, due to the late timing, it could have been better reviewed. But the board did consider and re-affirmed their earlier position to proceed with the adopted procedures. That was within their right. Trust me - boards, directors, officers are not bound to follow advice of counsel. They are free to accept it, digest it, weight the benefits, weight the risks and form a business decision. That was what was done. And, btw, my understanding of that opinion is not that it declared the practices illegal or invalid - it highlighted that with what most people seem to agree: the procedures are imperfect and could allow for fraud.

Organizations and their relationship with their members are basiclly governed not under constitutional law, state law or federal statute (with some exceptions), they are governed by the contract between the organization and their members: the by-laws. As such, so long as an act or decision does not violate a by-law, most courts will uphold it as valid and not insert themselves into what they view as a private dispute (once again, issues such as racial discrimination, sexual orientation discriimination, etc. will be accepted for analysis outside the by-laws. But even then it may not be enough: KKK's ability to promote intolerence, Boys Scouts decision to exclude homosexuals, PGA's decision to prohibit women in certain events, etc.). As such, since there does not appear to be a specific by-law violated through the adopted (and long standing) election process, I believe that they are valid. Not perfect; not without the need for improvement; but valid.

Of course, I must have been promised some bribe or something - why else could I reach such a decision.

Alan

So something that is not ethical/moral, but in accordance with the by-laws is OK? As Dan said in an earlier post, there were a bunch back in the 40's that used the same thought process in more evil fashion.

---

Larry

Don't be afraid to ride too long or too hard. That's what cell phones are for. Rich Strauss

Alan, from your posts, I gather you are the only attorney who has given a legal legal opinion. The other attorneys, Backer and Grinder, have only given ethical or moral opinions not legal opions. In other words, an opinion that is about as binding as one I could give.
It just seems strange to me that the elites vote in a bloc. In the June vote 2 voted for with one not attending and in the subsequent votes. they bloc voted even though there were different people in at least one of those subsequent votes. We know from Mandy Pagon's response on this forum that she inferred she was voting for each member handling his/her own ballot nat any member handling any other members ballot as was interpreted.
I also asked these same questions to Eric Bean and as of this date he has not responded. May I assume as the Uboard assumed that a no answer is an affirmation of my question that he knew it was not kosher but voted in the affirmative anyway.

Bob Sigerson

You are confusing issues. The board, the elites, and the attorneys were not asked to opine on morality of the election process - only the legality. What you seem to desire is that the elites (and the non-elite board members who also agreed) overturn a legally valid election based upon your personal dislike for the procedures. That was not their task (nor should it have been). They were tasked with examining whether the election process was valid.

Also, if they were to be charged with substituting personal desires in the place of correctness and legality, wthen you would have no problem with board members who feel women triathletes or minority triathletes should receive smaller prize purses or not be allowed to compete in the nationals imposing that personal opinion in the place of legal obligations. Just because the substitution of a personal ideal over a legal position may appease your concerns one time - it is a slippery slope. Who's personal ideals should be used as the standard? Yours? Dan's? Mine? That is why codified statutes and laws exist - to standardize the process and to minimize the impact of one's personal agenda against legal principals.

Your support for such a substitution of personal feelings over legality would fade a bit when those personal feelings of others no longer align themselves with your interests and resulting actions erode your legal rights. Those elected via a valid election had the legal right to have their elections enforced - not eroded by personal feelings.

Alan

Bob:

No, I wouldn't say that. It was well resoned but, in my opinion, it reached an incorrect conclusion. I can't really say anything about Backer's as I have only seen excerpts. But the excerpts that I have seen all refer to what I would refer to as "policy" as opoosed to legal points. Sometimes the two coincide, but here I had the impression that the conclusions reached were along the lines of "while not illegal, they are not the best". But, again, I preface that with the statement that I have not seen the full opinion.

I do not believe I have ever met or discussed anything with Mandy or Eric, so I will not guess at their intentions or feelings other than to say that I have faith that they voted accordingto the facts and authorities presented to them and were not swayed by promises or perks.

Alan

"The other attorneys, Backer and Grinder, have only given ethical or moral opinions not legal opions"

they were both asked to opine on the legal aspects of the election, tho backer was asked for what one might term "legal advice" rather than an opinion. a legal opinion is a singular animal that carries with it, among other things, liabilities for the attorney giving it. i've gotten legal advice, when an opinion saying the same thing as the advice would've cost me triple the amount.

backer's advice was given as co-chair of USAT's legal committee. he's not, to my knowledge, admitted to the california bar, as alan is. but backer is also one who knows the bylaws, and their limitations, very well, since he largely wrote them. backer's advice stops short of saying that the bylaws forbid dirty electioneering. there are a lot of things the bylaws don't say. what backer appears to me to imply is that the election's obvious invitation to fraud is something that is likely to prompt a challenge in california civil court, and that such a challenge may have merit (a notion with which alan disagrees). backer clearly DOESN'T give the advice gattis/girand no-doubt wish he'd have given, which is, "i may not like the election, but it's perfectly legal."

as a word to alan (who makes this forum so much spicier than it would otherwise be), i didn't simply pull my suspicion of a quid pro quo out of my pocket. several board members have told me privately that the three pros tend to often vote as a bloc because it's in their best interest, and that the interest is not necessarily related to the issue on which the vote takes place. for example, they have zero to do with this election, and yet the three voted not just this past time, but originally, to use practices which we all now agree were flawed. i'm not saying that the elites are bad people. i'm saying they might've voted that way because they thought their bread was more likely to be buttered by the side with which they showed solidarity. short-sighted, yes, but evil, no. and you're right, i have no knowledge of what the "butter" was. that's why i labeled it a curious coincidence resulting in a suspicion.

i, however, AM an evil person because i voice my suspicion that there is a reason why 5 elites cast 6 votes all in the same direction, and 0 elites cast a vote in the other direction. i know i am evil because i have a premonition that i'm going to be branded so by alan very shortly and, oddly enough, i'd be disappointed if that didn't happen.

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Dan Empfield
aka Slowman

So at what point did triathlon stop being fun?

"So at what point did triathlon stop being fun?"

i raced, oh, maybe 7 triathlons, 6 footraces and a bike race last year. no lack of fun there. yes, i'm an activist when it comes to the things i value. i am therefore an activist about the air i breathe (as any smoker knows who's lit up within 20 yards of me), and about how pets are treated, the care of public lands like national parks and forests, and my family.

and triathlon.

i pace myself. i don't care all at once, and then give up when i get frustrated. i parcel out my activism in doses guaranteed to keep me going for the long haul. i recommend the method. then you don't find yourself on the outside looking in.

---

Dan Empfield
aka Slowman

Dan,

You are correct on David's position on all of this prior to the election. But here's the thing. If you read Article XXI of the USAT By-Laws it's pretty clear: "All provisions of these By-Laws shall be contrued to conform and comply with all applicable state and federal laws and regulations." Seems pretty clear to me. Last time I voted in a State or Federal election I didn't hand my ballot to the candidate or the electioneer. I didn't track the vote either. So someone please tell me how is all of this now legal. While past elections may have been conducted to some extent that way (and I may have in the past benefitted) this election showed clear cut violations of Article XXI. We can't go back and negate past elections where the term of office has since expired but now that we know, we can certainly invalidate this bogus election where the facts are known. If it means I run again under new and tougher regulations, so be it.

Jack Weiss, Member Board of Directors

Dan,

It was meant it jest, just all this crap that's going on makes it no fun.

I'm still more of an activist and pain in the neck as I was 17 years ago. Still not a real fan of USAT and still putting on very successful races despite others attempts to drive me out. After 17 years and 400 races, we're still going strong. I just avoid all this chest pumping, lawyer driven, politicking that seems to have replaced having fun at races.

Dan:

I actually don't believe you are evil, never said that and, until proven otherwise, I wouldn't say that. I do however believe that you are doing your own arguments and the readers a dis-service each time you post a statement as fact, or render an opinion, or make an accusation only to later recant it, or clarrify it, or restate it in a new light.

As for the elites, maybe the simple fact is they voted in uninamous fashion is that they are much more intimately familar with the facts, authorities and opinions than you or I and, as such, they rendered what they see as the right opinion.

That being said, I don't believe that you accuse them of accepting a personal benefit in exchange for their votes based solely upon the fact they voted the same. No, I believe your accusation arises because they voted the same with an result that differs from one you desired. Otherwise, had they voted in unison to denounce the election, would you now be here decrying that unanimous vote as a result of graft? Of course not, because then they would have acted in agreement with you. Its not the unity of a vote that triggered your statement, its the unity of a vote that oppossed your viewpoint.

Alan

Jack:

That is a boilerplate provision added to by-laws so as to avoid dissolution of a corporation due to an illegal provision within the by-laws. It is not an extension to every act or procedure adopted by a corporation. It is a tool of construction - i.e., construe the requirement that members have to pay dues in such a way as not to void the USAT's non-profit status.

You think there are clear cut violations of Article XXI? Tell me please, what exact law was violated? Does California have a triathlon club statute prohibiting some triathlon club conduct of which you complain? Is there a federal law regarding sporting associations voting that applies? What you seem to be missing is the word "applicable". You have to find a specific law, a statute, a regulation that by its definition and authority extends to elections in sporting clubs such as the USAT. Sure, I can find a number of state and federal laws that would be violated by our election if the laws that are APPLICABLE to those elections were twisted to apply to the USAT election. If that were the case, then USAT would probably be in violation of the federal election laws by not holding the election on the federal election days. It would be in violation by not having a minimum age in which to vote in the election as states and the federal government have. It would be in violation of the State of California election laws by not having electronic on-site voting machines in each of the specified counties and their enumerated polling locations (and absentee ballots) for the elections. It would be in violation of various re-destricting decisions through its division of the U.S. into its selected regions. It would be in violation of multiple state term limits due to the length of its executive director's tenure. Where were our primaries as required by numerous constitutions? What about the electral college - I didn't hear about that vote here.

No - the USAT is not in violation of those laws as they are not designed to apply to USAT elections. Find one, find such a statute or a regulation that governs that election and you may have something. But until you do, you can't willynilly point to any election law or regulation that applies to federal and state elections anc claim that it encompasses the USAT's annual election.

Alan

Nevertheless, the process is unethical, promotes unethical behavior, and has already shown to produce some disturbing activity. That activity being candidates tracking personal information on the votes they collected.

People othen confuse something being "legal" with being "right". Segregation was legal. Many, many people complained about it. Would it be correct to have told them to STFU because it's not against the law?

So some people are trying to affect some change. They're going about it in what they feel is the best manner. Why is that time to say "shame on you"?

Maybe I'm wrong. Maybe it would truly be a better world if people didn't waste their time worryong about what's right. Instead they should only pay attention to what's legal. There oughtta be a law...

Pooks:

I never said the process was the right process, please go to any of my (numerous) posts and find where I said that. In fact, I have said things to the contrary. Of course, what is right is not always legal, and vice versa. But there are legal ways to change an unjust or flawed procedure.

Also, I don't ever recall saying that someone should be shamed for trying to effect change. I believe what is needed is a greater degree of participation from within the USAT membership, not less. The activity from our membership reflects near apathy.

I never said someone should be ashamed for trying to change what they feel is a wrong procedure. I did say that it is wrong to resort to personal attacks and unfounded accusations as a means to effect change. But if people want to change the rules, there are procedures and processes to do so. And I welcome all to take part in those procedures. I think you will see very little rising up to so particiapte....and that is where the true shame will be found.

Alan

Mr. Geraldi,

That's your interpretation. I choose to interpret Article XXI another way. That's America but in my mind I still go back to the fact that handing completed ballots to the candidates in ANY free democratic society is wrong and inappropriate. And while Federal and state law may not exactly cover this precisely I think the intent of Article XXI is pretty straight forward with how the Federation should conduct its business.

Jack Weiss

"That is Boilerplate"............Alan, your kidding right....the intent of article A was B so don't try to apply it to the real world.....I've seen folks try to argue legislative intent when the letter of the law conflicts with their needs...........Never have I seen an arguement about "intent of" articles of bylaws. Creative!

Jack:

Its not your interpretation or my interpretation that is of strongest weight - it is that of the courts. Courts have routinely been asked to step into club disputes and have routinely declined. In a world of terror suspects being held sans rights; where husbands kill wives and unborn children; where executives swindle retirees out of their lives' savings, and other real-world issues, courts really don't gave a #%$ about a sport club's internal disputes. Don't accept my interpretation, as you say, its America. And in America, clubs are free to impose communist-fashioned election techniques; socialist-fashioned election techniques; monarchy-fashioned non-election techniques; etc. Courts don't care. Your attempt to stretch a democratic ideal to internal club politics, while admirable, is misguided. Courts defer to clubs to run their internal affairs as they see fit (with few exceptions). Your opinion that Article XXI is clear-cut ignores the very language which you desparately want to assist you - "applicable" means that the laws must apply to that fact pattern. If they do not, you can't pick and choose those laws that you want to cover your situation. Again, I'm not saying that there isn't a statute or regulation out there that is applicable. I haven't found one and until you do, your case is lacking a necessary foundation.

Alan

Gopre:

Actually, I believe that legislative intent is one of the strongest arguments in statutory interpretation. Statutes and regulations are mere codification of our elected officials' intent. It is only by studying the intent behind the statutes/laws that the true effect of the printed words can be gleaned. Otherwise, one is merely guessing as to the reason certain words were chosen.

And, you should not be surprised that intent is applied to by-laws. Almost every boilerplate provision derives its existence from prior case law - and a subsequent attempt to avoid the same case. Do you really think Conflict of Law provisions, Severability provisions, minority shareholder rights, even defined term provisions just magically appeared? They were the reaction of drafters to avoid confusion that led to prior disputes. By anticipating disputes and issues, drafters created standard language which were then uniformly inserted in all subsequent documents...hence the term boilerplate.

The intent behind "the bylaws will be interpreted so as to be compliant with all laws" was a result of previous attacks to destroy a corporate entity's existence or penetrate the corporate shell by arguing that the certain corporate acts, if allowed, "could" violate a certain law. Since corporations can't be recognized if their purpose is to violate laws, the corporation would not be recognized as a protective entity due to public policy concerns (i.e. corporations can not have an illegal purpose). As such, drafters started including the verbiage that no matter how many possible meanings or interpretations could be applied to the language selected for the by-laws, only those interpretations that would not, if followed, violate law would be recognized.

It is a bit different from legislative intent, but along the same lines. Legislative intent looks to examine why certain words were chosen and to identify the politician's intent behind the selected words. Here, the process is not to identify a collective thought process or debate, but to recognize the historical rationale for including the same (nearly verbatim) language in similar documents. Look at other by-laws, you sill usually see similar words. Boilerplate.

Alan

The language of the law itself trumps an attorneys legislative intent argument 90 times out of 100, at least in hearings I preside over. I think that everyone involved may be missing what are two bigger issues here. One is that this scandal will adversely effect membership. Don't board members have a responsibility to conduct the organizations affairs in a manner that are financially prudent? Second and along the same lines, a couple phone calls by a disgruntled member who has had enough, to their congressional delegation and your going to have the USOC asking all kinds of uncomfortable questions. I can see how the USAT got itself in this bind, no big deal. My question is, what is the current board going to do to correct the problem going forward?

Gopre:

Interesting - I have seen legislative intent arguments utilized quite sucessfully, especially in cases of regulatory interpretation. Even been forced to use them myself on a few occassions - sometimes successfully, sometimes not. Unfortunately, in so many agency regulations, its difficult to find the "plain language" of which you speak. But, I do agree that where clear and concise, statutory language does not require a trip to legislative records. (Not that aids Jack's case here as even under your plain language anaylsis, the use of "applicable" limits the effect of Article XX! to those laws specifically designed to encompass the internal board election. But then again, that is a slight difference from a legislative analysis anyway). Just out of curiosity, on which bench do you serve?

Also, if re-read all the posts, I don't believe that anyone is missing the two concerns that you have listed. I don't necessarily agree that this dispute will have a noticable effect on membership - hell, but for the 10-20 people posting on a few internet forums, the percentage of the USAT membership probably hasn't informed itself of the issue; educated itself of the facts; or really cares. You see those comments in this forum. But, even assuming some minimal impact upon membership, boards are not required to conduct their affairs so as to appease people. They are required to conduct their affairs per their fidicuary obligations to the corporation and, in public benefit non-profits, to the causes for which the corporation was created. Here, the fact that there is a dispute regarding an election technique does not equate to a breach of those duties.

That depends upon the elected official. But assuming one is interested enough to divert attention from the other pressing issues she or he has before them, and assuming that the USOC also decides to get involved, the end result will probably be that the USOC quickly puts this to bed with a opinion that it won't disturb this election and a directive that if the USAT has not yet done so, to adopt clear and concise election guidelines that minimize the complained of risks. But, I believe that the USAT should have will have already adopted new rules regarding future election procedures anyway.

Alan