California Surveyors Forums

Not sure if anyone has posted the ballot or the proposed bylaws with amendments. The ballot must be in a special, double envelope with your signature so simply printing the attached and sending it in will not suffice. Nevertheless, see attached ballot for reference.

FYI to whomever might be in the same situation as me regarding the vote: I received a new ballot in the mail today in response to the request I sent via surface mail.

Thank you Clark for a little humor. We seem to be getting pretty wound up with all the drama surrounding this matter.

In my opinion, there are too many unanswered questions regarding the proposed changes and I don't think the world is gonna stop turning if the voting is suspended until members have a chance to figure out what's really going on. As others have said, absent such a suspension, the only alternative is a no vote across the board.

If it turns out there's some shady business going on, we will certainly ferret out the perpe-traitors and send them packing.

As far as Mr. Pallamary's posts are concerned, obviously the man is on a mission to make sure everyone has time to understand what they are voting on. Thats an important part of a democracy, and last I checked, thats what we strive for in this country. If you dont like his posts, I suggest you stop reading them.

Stanmyron, you come across as someone that is not very confident that the vote is going to be in your favor. A bit desperate, maybe? That alone causes me concern and tends to push me towards the other camp.

Respectfully,

Mr. Stanmyron,
Show your credentials, your contact info. Show to all of us.

Does bossman know you are wasting company time? Remind legal dept of your identity so they can be sure to avoid you.

Are you even in this industry? Or were you hired off the street like the illegal aliens who get farmed from Home Depot to picket non-union jobs?

"Here we are now, Entertain us!"

Mike Hartley wrote:After a long hiatus from CLSA membership, I rejoined and began attending local chapter meetings again about three years ago.

Can someone tell me when this change from Chapter Representative to Director happened? As I understand it, there is now an expected allegiance, devotion and loyalty to the Association that trumps truly representing the chapter and its regular members. I know that the current, proposed bylaw amendments formally change "Chapter Representative" to "Director", but when did the shift in thinking happen? And why?

The executive director called me today. I had never spoken to Dorothy and we had a pleasant conversation. She wanted to respond to my inquiry on the forum about the change from "Chapter Representative" to "Director". She said that she would send me an article describing the duties of a director. She did send that (see link below) and it is, in my opinion, helpful towards understanding the duties of a director. [added: I also want to specifically mention that in no way did Dorothy try to persuade me in voting a certain way. That is something I appreciated very much. She was quite professional.]

It is written by Alcorn who is the firm representing CLSA in some of the recent legal armwrestling between CLSA and Dave Woolley. While the article is helpful in understanding the duties of a director (both to the Association and to the membership and chapters), it seems likely that all the directors were given instructions pursuant to Alcorn's opinions. It is possible that Alcorn's understanding of directors' duties is spot on, but is it also possible that it is subject to interpretation - perhaps not as solid as the article suggests.

Alcorn's article does discuss the potential conflicts of interest that can arise when a director has to choose between his/her personal interests and that of the Association. It seems clear that the director should be "loyal" to the Association and not put individual interests first. Also clear is the notion that once decided, an individual director should not run around openly being critical and causing disruption. However, if a director is firmly convinced that the interests of other members and/or the chapter he/she represents are opposed to the associations' interests, then the lines get a little more blurry.

I think some directors have decided not to disagree with the Association out of some fear that they would be violating some fiduciary duty, but even Alcorn's article indicates that the directors should represent the membership and chapters and communicate differing views if they exist.

I still prefer the title "Chapter Representative" over "Director". I think it reminds those on the board that they should represent the views of their chapter and the membership. I'll be voting accordingly.

Either way you side, the article is a good read in my opinion. Thank you for sending it Dorothy.

This is a good discussion Mike. Thanks!

The founders of this great country solved this problem many years ago when they adopted the Constitution. With regards to the notion of representation for the various chapters, this is akin to the role of the various states. This knotty problem was solved a long time ago and the same mechanism should be accepted and adopted by CLSA. To the extent there are conflicts with the procedures and bylaw issues, it is my opinion that the failure to adopt a constitutionally based form of representative government is the reason there is conflict; these procedures are inherently and intuitively unconstitutional. This is an observation intended to stimulate thoughtful dialogue and not to promote conflict. The framers of the constitution did a good job figuring this out. To run contrary to that framework seeds conflict.

Having an opportunity to discuss the proposed bylaw amendments was important to some of us. Our chapter's president agreed and apparently arrangements were made to also have CLSA President Van De Valk in attendance. As far as I know, this meeting is open to all those who are interested. Here is the text of the special meeting notice that was sent out by the chapter ...

All -

A special meeting for the San Joaquin Valley Chapter of the California Land Surveyor's Association will be held Thursday, September 4, 2014, at 6:00 pm, at the Fresno Marie Callender's, 1781 E. Shaw Ave. Fresno, CA.

We will be taking the opportunity to discuss the proposed amendments to the State CLSA Bylaws as a chapter. Please read the Bylaws in advance in order to facilitate an informed discussion.

Rolland Van De Valk, CLSA President will be in attendance to answer questions about the development of the State Bylaws as presented.

Approximate meeting schedule:

6:00 pm - Check in & Social
6:15 pm - Welcome & Chapter discussion.
8:00 pm - Adjourn

Hope to see you there.

I also read the Alcorn article and think that there is a good deal more of Mr. Alcorn's opinion than there is the law.

The case that he has cited in this article and in his counsel to CLSA has to do with the sale of a hockey team (Sharks), the seller (Murphy) being also a director or Trustee of the owner's asscociation (WHA) that vote's to approve or disapprove the sale.

This particular trustee was the only one to vote for the sale in the initial vote (11-1 against). He apparently lobbied pretty well before a 2nd vote and the sale went forward. After the sale, the buyer (Bloom) formed a corporation (PHC) and designated the Murphy as his representative on the WHA board. Murphy later became WHA president and Bloom became the PHC representative on the board. Bloom was unable to relocate the Sharks to the city he wanted to go to and fell into default in his financial obligations with WHA.

Murphy, as WHA president, spoke to each of the various trustees separately by phone and got approval of a sale of the Sharks to yet another party, who eventually defaulted.

WHA then got ticked and realized that Bloom and Murphy had been dealing from the bottom of the deck. They sued PHC on the grounds that Murphy and Bloom had been acting in their own self interests rather than in the interests of the Association.

Yes, the court recognized that Directors have "fiduciary duty, including the duties of obedience, diligence, and loyaly." But they also said "[D]irectors are under obligations of trust and confidence to the corporation and its stckholders." And "Directors must act in good faith for the interests of the corporation or its stockholders with due care and diligence and within the bounds of their authority."

The bottom line of the foregoing is summed up by the court thusly: "[T]he duty of loyalty requires the directors/trustees not to act in their own self interest when the interest of their corporation will be damaged thereby." (emphasis added by me)

In the cited case, Bloom and Murphy had big money at stake in the two sales of the Sharks. Both sales turned out to be bad deals for the WHA, which lost money on each. It seems pretty clear that Bloom & Murphy were voting and lobbying in their self interest. It is not so clear whether they knew or should have known that both deals would end up damaging the WHA.

At any rate, the court found for PHC, Bloom, and Murphy. Even though the 2nd sale of the team from PHC to another group was not approved per normal procedures in that it was not discussed at a regular meeting, each of the directors gave their approval individually, and at a later meeting, the board ratified several sales by an approved motion.

The court decided that the board, made up of intelligent adults who were sophisticated enough about ownership transfers that it was presumed that they knew what they were doing, had approved the transfer after each member had a reasonable opportunity to consider it.

This case does not hold that a director placed on the board of a central association by a member chapter has a duty of loyalty to the central association over the member chapter. IMO, that's an imaginative opinion from Mr. Alcorn based on this case.

But he also cites Advising California Non-Profit Corporations §9.111: "
§9.111 a. Definition

A director must act in a manner that the director believes to be in the best interests of the corporation and all its members, including the members of minority factions, and to administer his or her corporate powers for the common benefit.
Corp C §§5231, 7231, 9241; Remillard Brick Co. v Remillard-Dandini Co. (1952) 109 CA2d 405.





This element of the fiduciary standard articulated in the Corporations Code is commonly referred to as the "duty of loyalty." The duty of loyalty in the Nonprofit Corporation Law does not refer to members (as does
Corp C §309(a), applicable to business corporations), probably because many nonprofit corporations have no members and, for those that do, the members often have no proprietary interest in corporate assets (i.e., assets that are, by the express terms of the articles of incorporation, dedicated to a public or charitable purpose).

The overriding objective of public benefit corporations (and other nonprofit corporations) is to advance and achieve the corporation’s purposes as stated in its governing documents, rather than to advance the interests of individuals. Directors are obligated to champion the best interests of their organization (and the organization’s constituents), rather than personal interests. In the context of charitable organizations, that constituency is deemed to be the segment of the public that the charity is intended to serve, according to its stated purposes."


Again, it speaks to a conflict between organizational interests and personal interests. Although there is some inherent association-centric element to it, it does not require a structure per bylaws that vests power in some central committee and which demands fealty to the central authority at the expense of the chapters and general membership.

The whole focus of these laws is to prohibit PERSONAL INTERESTS from being promulgated at the expense of the interests of the organization.

Interests of the members, collectively, ARE THE INTERESTS OF THE ORGANIZATION. Interests of the individual members, voiced collectively by region through the Chapters is how the interests of the organization should be defined. Where the Chapters are in agreement, there are state-wide interests of the Association. Where the chapters are not in full agreement, there are regional intertests, and that, more often than not, is OK. There are some regional differences in practice, which are in conformance with state law, that a defined statewide interest, while also in conformance with law, may otherwise clash with. Such a defined state-wide interest is an overreach by the central organization.

There is nothing in the law that says that the BoD should not have oversight of the Executive Committee and of the Executive Director's office. I don't know personally of any improprieties within either, but it bothers me greatly that these bylaws seek to remove that oversight. That simply makes no sense. If the Directors support such a change, they are abdicating their fiduciary duties to the "stockholders", i.e., the members in doing so.

§9.111 states that members of a non-profit organization are not afforded quite the same protections as stockholders because we have no financial stake in the Association. Gee, how does the CLSA come by its assets? I was under the impression it was from the dues, the registration fees to conferences and seminars, and the donations of the various members - all of us to some extent or another.

Having reviewed the background materials provided to me by the Central Office (thanks, Dorothy), my opinion remains unchanged.

The timeline of the proposed Bylaw changes shows a lot of distribution to directors, but none to the general membership. If they were not discussed in detail at chapter meetings (and if as reported by some, Directors were instructed to NOT discuss them, or certain particulars pertaining to them), and if there was no other means of distribution to the general membership, just how is it we should have been well informed prior to receiving the ballot?

The proposed changes to the Bylaws are bad for CLSA in that CLSA is its membership 1st, and its Board and officers in place to serve the members. The members are not here to serve the BoD and the officers.

VOTE NO!

And then let's have a (far more) open discussion of any proposed changes through our Chapters, on this forum, and through a fully informed membership. If there are changes that actually need to be made, make them after these inclusive discussions by an informed membership.

[Edit: sorry about some of the funky font differences. that's a result of some cut-n-paste hidden format stuff. Not intentional]

Another very important thing: Some of the most onerous changes (loyalty and most of what turns the organization upside down from member-centric to Ex Comm centric power structure) are in those Bylaws that we don't get to vote on because they are said to be changes made to comply with law.

Not so! If those Bylaws are changed without greater opportunity to more openly discuss them among the membership, I believe some form of civil disobedience among the general membership would be appropriate. That may be that membership falls off in great numbers as many quit the organization until it is again structured to serve the membership rather than the top officers, or it could be that sufficient numbers of members hijack the agendas of their Chapters or maybe even upcoming BoD meetings.

I'm not advocating any particular action, but I certainly wouldn't condemn any such (peaceful but impossible to ignore) action that essentially forces open discussion either.

Evan,

Are you interested in joining us Thursday night in Fresno?

Mike

I read the Alcorn advertising paper too. But you went the extra mile to read the case citations. What you found bears out what I imagined would be the case and that is the case law is going to relate to for profit entities or other corporate entities whose structure and purposes are really dissimilar to that of CLSA and therefore great care would need to be taken to apply these principles to our organization.

Perhaps there is a lesson here with respect to low bidder. From the association documents I reviewed there was an attempt to contact several attorneys and obtain fee proposals from them that included video taping their presentations. Most of the attorneys declined or were turned down because they would not videotape a presentation for director legal training. So this left one attorney whose fee was well outside the associations budget and so it seems we wound up with Alcorn because he was cheap enough for us to afford.

I thought this was interesting ...

We have helped our clients face the most difficult problems from litigation, to stolen trade shows, member expulsions, embezzlement, employee terminations, rogue volunteer and/or staff leaders, chapters in revolt and public relations crises.
We don't shy away from unpleasantness or conflict, so long as action is the right thing to do.
If your organization is facing a crisis, let's sit down and review your options.

So who made the decision to use our money to hire someone who espouses these qualifications? He sounds antagonistic and confrontational. Who decided CLSA had these problems? Is the membership entitled to know the screening process and retention arrangements? Can the membership see the agreement they are paying for. Is this a transparent arrangement?

Evan - thank you for your efforts to work through this material and for your posts on the Alcorn article, very helpful to the discussion. Your thoughts dovetail nicely with several discussions I have had on this subject, and give some substance to what we thought was a correct interpretation of this particular part of the debate.

Mike Hartley wrote:Evan,

Are you interested in joining us Thursday night in Fresno?

Mike

Mike,

Thanks for the invite, but I can't. Our chapter (Sacramento) has its meetings on the 1st Thursday of the month and is devoting tonight's meeting to discussing the Bylaws.

Thanks Evan

Mike Hartley wrote:Having an opportunity to discuss the proposed bylaw amendments was important to some of us. Our chapter's president agreed and apparently arrangements were made to also have CLSA President Van De Valk in attendance. As far as I know, this meeting is open to all those who are interested. Here is the text of the special meeting notice that was sent out by the chapter ...

All -

A special meeting for the San Joaquin Valley Chapter of the California Land Surveyor's Association will be held Thursday, September 4, 2014, at 6:00 pm, at the Fresno Marie Callender's, 1781 E. Shaw Ave. Fresno, CA.

We will be taking the opportunity to discuss the proposed amendments to the State CLSA Bylaws as a chapter. Please read the Bylaws in advance in order to facilitate an informed discussion.

Rolland Van De Valk, CLSA President will be in attendance to answer questions about the development of the State Bylaws as presented.

Approximate meeting schedule:

6:00 pm - Check in & Social
6:15 pm - Welcome & Chapter discussion.
8:00 pm - Adjourn

Hope to see you there.

Well, we had our special meeting last night. There were 10 of us in attendance. Thank you again, Rolland, for attending and providing insight into the process behind the proposed amendments and some of the thought processes that went into it all.

I did obtain information that eases my concerns about some of the amendments. However, I still have some serious concerns.

One, perhaps the biggest one, is the duty of loyalty to the Association issue. It was mentioned last night that directors have that concept grilled into them at every BOD meeting. I have never been to a CLSA BOD meeting, but I have been to many BOD meetings of two other organizations. One I just happen to attend as a member; the other is ACEC of which I serve as a director. The duty of loyalty issue has never come up at either of these 2 organizations.

In the case of CLSA, my objections to "duty of loyalty to the Association" are twofold. First, the more I hear any one person talk about loyalty to the Association, the less that person seems to talk about the duty of representation. The Chapter Representatives are obligated to take chapter issues to the BOD meetings, they are obligated to share views of individual members and/or those of the chapters, and they are obligated to question, as a prudent person would do, when they witness something that doesn't look right.

Corporate Code Section 7231 (a) States, A director shall perform the duties of a director, including duties as a member of any committee of the board upon which the director may serve, in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.

This code does not state that the director should "represent" the interests of individual members or a subsidiary group (i.e. chapter). Why? Because it's obvious that a director, elected by the members and/or subsidiary group, should represent the entity(ies) that elected him/her. The duty of loyalty to the Association has been vocalized within CLSA because of acts that either are, or were perceived to be, loyal to the members and chapters at the expense of the Association. My problem with this is there is now far too much emphasis on the Association and not enough on the corporate members, the chapters, and the profession ... if we go to such great lengths to protect the former, that we harm the latter, then CLSA ceases to be relevant.

The proposed bylaw amendments will change "Chapter Representative" to "Director" (Sections 4.01, 5.06 and 5.08). I submit that at this juncture, our representatives need to be reminded of their duty to represent. Keeping the current titles will hopefully help in that regard; changing them certainly won't.

Proposed Section 4.04(b) states that individual directors have the duty to "Fully abide in their fiduciary duty of care, inquiry, and loyalty. Directors that fail to abide in their fiduciary duties will be subject to disciplinary action." That language concerns me greatly in that is alarmingly subjective and certainly does not encourage representation.

By the way, if the chapter representatives are not expected to represent those that elected them, then why is there one chapter representative per 20 corporate members?

My second objection to the "duty of loyalty to the Association" rhetoric is that it seems to have shown up about the same time as some of the disciplinary actions began to heat up. Perhaps someone can confirm this, but after looking into what documents are available to me, it appears that Alcorn was retained for the purpose of guiding the Association through the disciplinary action processes. As such, it seems to me that any proposed bylaw amendments stemming from Alcorn's advice should be met with increased skepticism by the corporate members. If approved, Section 2.08 will be entirely replaced with new language that has been subsequently tweaked, but was initiated in entirety by Alcorn. Remember, unless I'm mistaken, he was hired for a purpose. Is he serving the Association's interests? Yes, but shouldn't he be seeking to serve the membership too? Some may say that Alcorn is doing both, that the membership is served when the Association is served ... that a healthy Association will provide for a healthy membership. I think that is backwards. And I don't think the new Section 2.08 will help CLSA.

Another concern I have is that I keep hearing that "all the directors approved the bylaw changes." I just don't think that is true. My understanding is that the directors voted to have the proposed bylaw amendments be sent to the corporate members for approval. These are two very different things. Not having been at the meetings myself, can someone confirm which of these statements better reflects what the directors' vote represents?

They voted to send the bylaws to the corporate members. It is the corporate members who will approve the by laws.

At our Chapter meeting last night, with regard to the duty of loyalty thing, one chapter member commented that it reads as if the directors must be in lockstep with each other once the Board has voted and passed a resolution, taken an action, etc.

Our chapter representatives, uh, I mean directors adamantly denied that there was any such expectation and then went on to describe and justify that whether or not they agree with or voted for whatever the entire Board passed, it is their duty to parrot the party line to the rest of the members and fully support whatever the BoD action was. Whether or not they believe it is good or bad for the organization is irrelevant. Discussing the matters and sharing their opinions honestly with other CLSA members as to any BoD actions is not a consideration.

Sure sounds like lockstep to me. Furthermore, it sounds like a wall put up that suppresses the full discussion of actions that those in the general membership may not have been fully aware were pending.

When I asked as to whether these proposed bylaw changes had been discussed at previous chapter meetings, I was told that absolutely they were. It had been mentioned at several meetings that the bylaws were being looked at and some were being revised and that anyone who was interested could go on line to the CLSA website and view the BoD agenda and the proposed changes. The message was that I was remiss for not downloading the agendas and not tracking the bylaw changes.

Now these directors are my friends. I've known them for several years, have served on various committeess with them and respect them as professionals and for the hard work (and there is a lot of unpaid, time consuming work on many of the committees). Those friendships continue and the respect will remain, but I gotta throw the flag on this.

When one hears "Oh yeah, and the bylaw committee is reviewing and updating some of the bylaws", most people register that there are some inconsequential updates - grammatical fixes, changes to reflect that there are more chapters now than there were a couple decades back, provision to use email for some official correspondence, etc.

One does not expect that very significant changes to various processes, duties and authority, and an inversion of the structure of the organization, from chapter driven to BoD driven is happening.

Like Mike Hartley's experience at his chapter meeting, some of my concerns were addressed. But not all of them. The subject of expulsion/suspension and the fact that every change to it was to the significant deteriment of any member who would find themselves the subject of such an action was entirely glossed over.

"The decrease from 30 days notice to 15 days is reflective of our ability to communicate faster now"

Then why is that in every bylaw regarding Officer repsonsibilities, the provision to transmit written materials was updated to include electronic communications (email), but as to notice to the accused (§2.08), there was no provision made for email, but in fact the form of notice was changed to allow for use of 1st class mail (what is so often called "snail mail"), which has no delivery confirmation?

And why is it that every change to a bylaw addressing Officer responsibilities had an increased timeframe in which the work addressed must be done, but in the suspension/expulsion bylaw, the amount of notice the accused gets was cut in half?

"We had to change it to reflect changes in the law"

Nonsense! The 15 days is a minimum. the statute does not state "no more, no less". There is no valid reason to have decreased from 30 days to 15. that's two weeks less time to prepare, to alter your schedule, make travel plans, etc.

"By that time, you're well aware that you're being investigated because the investigator (the "designee referred to in 2.08) would have already contacted you, so you would know it's coming."

But then, maybe you are under the impression that it's just a misunderstanding, or such a minor thing that there is no way that 2/3 of the BoD would see it as a serious failure to abide, blah, blah, blah... and when the notice comes (with 3 to 5 days until the meeting at which it will be voted on becasue it came snail mail, was misdelivered to a neighbor and they just dropped it off after it sat in a stack of their mail for 3 days), it takes you completely by surprise because you were certain that it was going to blow over.

You realize that the meeting is at the other end of the state and you have to get an airline ticket. Damn! It's less than a week away and I have to pay the high rates for the ticket. If they had sent the notice certified and with 30 days notice, this ticket would have cost me $100 less. You also have to let the family know that you can't go to Grandma's with them because something important just came up. The kid's are disappointed "Aw Dad, you always have to work". The wife is ticked because she has to take the kids on her own. And on top of that, you only have a coulple days left to find and review all the relevant documentation, whatever that may be.

"Nothing happens quickly where the Board is concernced. You know that something like this would drag on for at least 3 meetings. That's 9 months' notice."

If the accused is a Board member and in attendance when his or her potential censure is being discussed, then the accused has that notice and has a sense of whether the alleged infractions are being seen as serious or if it's just a couple of thin skinned individuals upset about some comments. If you're not a director, an officer, and don't otherwise regularly attend Board meetings, you may not have any indication until you get the notice, unless the investigator (designee) contacts you to get the facts as you know them and your side of the story. There's nothing in the bylaws that state that the investigator (designee) must contact you, only that they determine whether or not there is cause for discipline and what that discipline should be.

"There's 50 directors. Although they are supposed to keep it confidential and not talk about it, don't you think that at least one is going to give you a heads up?"

Gee, I dind't see any provision for back channel notice in 2.08. Maybe I overlooked it.

As a practical matter, maybe you will and maybe you won't get that heads up. There certainly is no guarantee of it. And it is quite possible that the Grand Pubah, or the majority of the BoD directs that if anyone does spill the beans on it, that they would also be open to possible suspension or expulsion.

Remember, it's a Director's duty to toe the party line once the Board as a collective has spoken.

"No member has been expelled in the history of CLSA, so it doesn't really matter."

You know, all of this 'what happens in the real world' and saying that it is unlikely to ever happen is all well and good unless you find yourself on th ereceiving end of a possible suspension or expulsion. Then all of this back channel, as a practical matter stuff is OK if it actually happens. But it is not a part of the bylaws, is not the procedure spelled out, and very well may be prevented.


To the BoD, and particularly to my friends and colleagues on the Bylaws committee, thanks for all your hard work, but I'm still voting "no". Next time when "updating the bylaws" means overhauling several rules and significantly altering the structure and focus of the organization, make it a point to point out the significance and scope at the chapter meetings; publish it in the Chapter newsletters and/or in the Cal surveyor.

Some of these changes are not at all objectionable, but put in with those that are, the whole thing needs to be rejected so that the broader general membership can be aware of the scope and have a better opportunity to consider them, get questions answered, and give input.

That timeline that some of the Directors and/or officers have been providing lately to show how long these have been in process also show that the previous distributions have been to the directors. Unless the individual directors saw fit to impart the significance of some of the changes to the chapter members, the rest of us had no reason to look. If we felt that everyone should review every item of every agenda of every meeting to spot the items of particular importance, then we should all, all 1500 or so of us that are members of CLSA, we should all be directors.

But we're not. We depend on you to spot these things and inform us. Thats why there are only 50 directors and not 1500.

Pull the plug, walk away, and then see how CLSA functions. I vote for that. CLSA has done nothing for me but contemptuously complain when my annual dues are late.