“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
Eric Bean has answered some of my questions on duathlon.com. Takes as swipe at Dan’s mighty pen in his explanation.
Bob Sigerson
“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.”
hey, i don’t mind you expressing your views, and the one above has been expressed by you quite a few times. you want to distance yourself from the practices of vote collecting and just consider the strict legal arguments, and i understand that. i would too. but every time you write something to this effect, i keep thinking of these words:
“If you like - print out a ballot from www.usatriathlon.org, fill it out completely and sign the ballot and get it to me…I’ll get them all to Jim”
do you remember who wrote this?
Mr. Geraldi,
USAT is not a local club or an independent association in the truest manner. It’s the National Governing body of Triathlon, funded in part by the USOC. It sends athletes to world games and the Olympics to represent the United States of America. That means it is to reflect positively at all times on this country, be it on or off the “playing field”. Therefore I think article XXI very much applies and I am sure that despite your interpretation others within the legal profession would concur with my view.
Jack Weiss
“USAT is not a local club or an independent association in the truest manner. It’s the National Governing body of Triathlon, funded in part by the USOC”
this requires, btw, compliance with the national sports act of 1978, federal legislation. i pointed this out quite some time back to alan, and i don’t remember getting any reply to it. usat’s bylaws had to be changed in the early 90s in order to comply with this. usat has four masters it must serve, its members, california dept of corporations, its parent triathlon federation, and the usoc as organized under federal legislation. calling it a “private club” is just legal spin. the only thing that’s private about all this is each person’s interpretation of the law, be he a lawyer defending a specific bias or anyone else.
First, I am not a lawyer.
Second, I am not well versed in USAT, USOC, et al by- laws, rules and regulations.
Third, I am not a big shot in the triathlon world and really don’t know any of the esteemed big shot folks who have been debating this topic.
What I am is the run of the mill triathlete. A guy who loves the sport and wants to see it succeed and be a positive influence on other people’s lives.
OH YA - I am also like a lot of other age groupers - I spend a ton of cash on this endeavor, cash which goes directly to supporting USAT and pro athletes, not to mention tri related companies, race promoters, and the like.
That all said - based on all my readings here and through other outlets let me just say this whole election issue, from the perspective of the average triathlete, STINKS OF SOMETHING ROTTEN.
I really don’t care about technical election procedures or legal mumbo-jumbo by either side. I do care that something OBVIOUSLY has gone arie with how we elect folks who are supposed to have our, the athletes both pro and amateur, interests at heart. I also care that my sport, YES I SAID MY SPORT, has the look and feel of dishonesty.
Frankly I am embarrassed for the sport of triathlon in the USA over this.
To any board member who reads this, please let me be clear - If you think this issue is very localized, well it is not. If you think the general membership does not care, you are wrong. If you think this has not left a bad taste in people’s mouths, you are wrong. If you think nothing needs to be done, you are incorrect.
Going forward USAT needs to be very careful. An image has been tarnished and confidence lost. To do nothing will be a big mistake. Please take some definitive, reputable actions to resolve what is clearly a problem.
Dan:
Just because I believe that the process was flawed does not mean that I don’t wish to distance myself from the process. Do you really think entering into this fray to the extent that I have so entered it is a manner in which I “distance” myself from it. Since you are skilled at re-reading posts, please go back to previous ones where I stated that although I never personally collected ballots nor passed any on to any candidate - I probably would have had I been asked. I even indicated that I believe I may have or have not offered to do so (my recollection was that for my club e-mails, I offered to, but for on-line forums I did not. Don’t recall really - but I am sure you can find out). I did so because that was the validly adopted procedures under which this election and previous uncontested elections were run.
Once again - I believe that the procedures adopted are imperfect and should be changed. Once again, I believe that the procedures adopted were legally adopted and valid. Once again, I believe that election was held using imperfect procedures but as those were the procedures governing the election process, any candidate was lawfully and validly within their rights to utilize such procedures.
Alan
Jack:
Its almost humerous how many words are put into my mouth - I could have a feast. I never once referred to the USAT as a local association - in fact I repeatedly refer to it as the national governing body.
That aside, I will repeat for you once again - your reliance upon Article XXI is misplaced until you can find the applicable law. I have already admitted - there may be one, I certainly don’t know every law or statute enacted. But until you can cite it and show that it is intended to apply to USAT election, you still lack a requisite foundation. The fact that the USAT is funded in part by the USOC does not lessen this requirement - it could be funded by the Vatican and the requirement wouldn’t be lessend.
You want to pursue your challenge to victory? Go ahead - but you will need to identify the law that you claim applies. Once you do that, your case will be that much stronger. But until you do that, you have only, as you correctly labeled it, your own interpretation. That won’t carry much weight without legal authority to back up such an interpretation.
Alan
Dan:
Yes, I do believe you asked that once near the end of a string from which I had just withdrawn due to the high number of personal insults and attacks (I believe it was shortly after you likened my alleged participation in the election to the mass killing of the Jews).
But, since you re-presented it, I will try to answer it to the best of my ability. As I replied to Jack, the fact that the USAT is the national governing body or sanctioned by the USOC does not automatically make it subject to any old federal law to which one can point. You have at least gone the next step and identified an act that you feel applies. I believe you are correct. The USAT is required to comply with the national sports act. Now, if you can find within that act a regulation or statute that governs the internal elections of national boards you have greatly strengthened your case. But, and I admit to not knowing the full act, I have not yet seen such a provision.
And my “spin” is the legal approach courts have utilized when examining internal politics of sporting associations and other “membership” clubs.
Alan
Alan, there are a couple of troubling things that come up when you or one of the board members says something. One is that the system needs change but there was not time to change it. All that was needed in the June meeting was to include the words “the” and “signing” when it stated only a member can mail the ballot of a member. (Only the signing member can mail the signing members ballot). Not hard, huh.
Second, that, even though there are there are ways the ballot collection process can be abused, these are honest people and would not do anything dishonest. I don’t suppose keeping a spreadsheet of who and how each member voted is abuse of the system.
Bob Sigerson
Bob, funny you should mention those two words…As printed in the minutes, that was what was overturned by the infamous e-mail vote, the was 5-2…An increase of one from what the supposed vote was during the meeting (4-2)…
My question to the people on the board at that time is this…Why after two “opinions” of whatever nature you want to call them, said things needed to be changed or you might find USAT in a legal battle, did they turn that down?
It would be nice for some of the principle players in this to respond, but then again, I don’t know who voted how back then, because it was not in the minutes, as where the rest of the votes from that meeting…Smells fishy to me!
Bob and GatorDawg:
There was no overturning of minutes - it was a TYPO. That was merely correcting a typo. Even the secretary who took the minutes admits it was wrong.
Second, the reason change is prospective and not retroactive is that one does not overturn a valid election. Period. The election was valid, the winning candidates validly elected. You don’t re-write history, you re-write the by-laws to avoid a repeat of history (if that is your goal).
Alan
How long can this go on before the USAT Board realizes that they need to formally amend the Election process and press release the changes that have been made? The bad blood will continue to simmer until the problem is fixed or until folks get their just measure of revenge, whichever comes first. I can understand the USAT not knowing how to run elections, it is an area of expertise that only a few have. The handling of a problem such as the one that has occurred is a lot like the sport of triathlon itself. Go like hell and deal with things straight up and immediatley. Really, it’s the public relations blunder of all of this that amazes me. I’ve heard mention on this site that the problem has been fixed, but it is not posted on the USAT website anywhere and no one seems to have any specifics. We all love this sport way to much to be at each other like this…I get this stuff at work, come to think of it, it’s how I stay motivated to train…on second thought, carry on!
The Commissioner
Gatordawg, the aye voters were Fred Sommer, Tim Becker, Amanda Pagon and Eric Bean. The nay vote were Ray Plotecia and Brad Davison. Abstainers were those running for election, Valerie Ellsworth-Gattis, Karen Buxton, Diane Travis, and Jim Girand. Eric Schwartz did not attend the meeting but voted yes in the e-mail vote.
I, personally, am not going to do Fred Sommers race when it comes to New Orleans in August as my little protest. Maybe I can gegt other people to protest with me as Elephant Walk in San Destin, FL is on the same day and we have a lot of fun there.
Bob Sigerson
Bob, I thought the e-mail vote was to confirm that was printed in the minutes was wrong (I thought I read that, but correct me if I’m wrong)…So, if Eric wasn’t there, how could he vote as to what was discussed???..I’m telling you, it smells fishy to me…Bob, I may be with you on the Fred thing…I live in Florida, and I can tell you, I probably won’t be doing any of his races this year, nor encouraging others to do them either…I may discourage people in fact, and inform them about what has transpired…
Alan, I’m not sure the election was run by the bylaws…Amanda claims that she didn’t vote for candidates to handle votes, yet she is recorded, as told to me on this forum, for voting for that…I would say that there was so much confusion around this, that the candidates themselves, or at least the ones not at the board meeting, may have not really know what the proper procedure was…
What was the timing of the amendment of the June meeting and there posting…Was it prior to the election or after?..Plus, I still don’t know how Val Gattis was added to the ballot when she was not running as an incumbent of a seat…I think that in and of itself may be contestable…
From my point as a USAT member, it seems that there is a lot of cronyism amonst certain board members…And, just because something has been done in the past doesn’t make it right…This reflects, in my opinion, the moral and ethical character of these people when they know, and everyone else knows, using the campaign/election procedures like this is at best, highly suspect and leaves open the question of many impropriaeties…Like I’ve stated before, it may be time for counter-campaigning with regards to these people.
Just my $.02
Mr. SFTriguy,
Dang, dude! It’s getting harder and harder to undertand your position and what you are defending (except yourself).
No offense intended… 
Mike