Jim, we will have to disagree then. And I am not a "plan proponent". Please don't make such inaccurate classifications. My advocacy role is as assigned by the Board as a whole, President, or the CEO. I don't do policy. Only Board members, acting collectively, do. But if you are suggesting that offering an opinion, based on a legal analysis, that the opinion of competent attorneys who were retained to provide an opinion about Connecticut law is wrong, I would suggest that you tread lightly because there is nothing anywhere empowering a Board member, much less a Vice Director who is not in any sense a member of the Board, from doing so. And by doing so, as I see it, you put the Board in jeopardy. They are entitled to rely on the opinion of Day, Pitney. They are not entitled to rely on your contrary opinion, which organizationally you are not competent to provide, and if they do so, they do so at their risk. Risk of what? It is a fundamental principle of hornbook corporate law that if the corporation acts in violation of corporate statutes, especially if done knowingly, the corporation risks revocation of its corporate charter, among other things. This is not a small matter, Jim. Chris On Wed, May 3, 2017 at 11:24 AM, <k6jat@comcast.net> wrote:
Chris (and the other Plan proponents):
I wholeheartedly agree that attorney members of a not-for-profit BOD should not provide legal advice or formal legal opinions in the normal course of their duties. However, no such concern about providing unsolicited legal advice was raised at Tuesday night's cordial and productive webinar. I, for one, have not purported to provide legal advice to the BOD. My letter of April 8, 2017, was a critique of the two memos distributed to the BOD (within 5 days of their distribution even though I was out-of-town through the 7th) based solely on a plain reading of the words within the four corners of those memos and without a review or investigation of any other documents, authorities or facts. (Indeed, non-lawyer Directors have pointed out some of the same infirmities that I commented on.)
While a lawyer's critique is certainly informed by his/her professional education, lawyers are not required to "check their credentials at the door" in order to express their personal opinion. I have taken continuing education courses on the appropriate role of a lawyer serving on the BOD of a non-profit corporation due to my involvement in such organizations here and elsewhere, and can assure the BOD that *I have only expressed my personal opinions on the Vice Director plan and have not attempted to impart legal advice to the BOD*. I just read the memos carefully; it's all there. If this is considered legal advice so is the "spin" contained in the April 3, 2017 memo.
Unfortunately, this e-mail has been necessitated by the bare assertion that there has been an attempt to provide some unspecified (but unauthorized) legal advice to the BOD. This allegation rings hollow, however, when no one seems willing to defend the statements contained in the memos or identify the unwanted legal advice. Such *ad hominem* attacks upon legitimate critics of the Plan are not appropriate for BOD deliberations. The issues should be discussed on their merits.
Sincerely,
Jim K6JAT
------------------------------ *From: *"John Bellows" <jbellows@skypoint.com> *To: *"Bob Famiglio, K3RF" <RBFamiglio@Verizon.net> *Cc: *"G Widin" <gpwidin@comcast.net>, "arrl-odv" <arrl-odv@arrl.org>, "John Robert Stratton" <N5AUS@n5aus.com> *Sent: *Tuesday, May 2, 2017 9:30:56 AM *Subject: *[arrl-odv:26444] Re: The ARRL Corporate Structure IS Legal — And In Compliance With Connecticut Law
Last year one of the regular Board participants was alleged to have engaged in practice of law in Connecticut. The claim was that he provided legal advice is to corporate matters. My understanding is that he was found not to have engaged in unauthorized practice and the primary reason was that he limited his advice as to non-corporate matters and that we relied on Day Pitney for advice as to those legal issues.
The primary reason I followed the advice of day Pitney in working on the memo to the executive committee was that there was concern that if we deviated from that advice a claim could be made that those involved in preparing a memo were engaged in the unauthorized practice of law.
Since the those attending the Board meetings include several competent attorneys my assumption was that they in particular would identify their concerns and questions as the Day Pitney opinion and we would present those questions to our Connecticut counsel
Considering the claims of unauthorized practice of law raised last year I was frankly surprised that some of the comments actually included legal advice to members of the board. No one is suggesting that those individuals are not competent in their respective fields of practice and jurisdictions. The only questions are the proper and legal way to do things and whether those giving legal advice are authorized to advise the board as the matters of Connecticut law. As amateurs I'm sure we understand the need to respect the law.
This shouldn't be complicated. If we have questions we should direct them to our corporate counsel. If they're wrong they have an obligation to acknowledge it. If they standby the opinion they ought to have a chance to state why. Criticizing the Day Pitney opinion and not allowing them to respond to those questions seems neither fair nor appropriate.
Jay, K0QB
Sent from my iPad
On May 2, 2017, at 9:52 AM, Bob Famiglio, K3RF <RBFamiglio@Verizon.net> wrote:
Greg:
Lawyers are trained to analyze arguments and the law. Whether it involves a particular state’s law is secondary. Well versed lawyers can interpret the cases and commentary they find and provide an opinion – it is done daily. I am admitted by examination in several states and find the analysis of law to be identical in those states. Just as with medicine and engineering schools teaching theory, law schools do not teach the law of a particular state. Lawyers in one state are frequently called upon to interpret laws of others where contractual terms dictate application of one state’s laws but jurisdiction is primarily in another. It is certainly true that a lawyer admitted in and licensed to practice law in a particular state may have a better handle on particular issues. So far, DP has not proved that. They could have made much better arguments if the law was clearly supporting their comments. It does not. As pointed out, that may be why we see an informal, unsigned memo and not a well-reasoned opinion.
Whether engaged as a CT lawyer for the League or not, anyone has the right to provide intelligent, reasoned rebuttal. Lawyers are equipped to do it better in this instance. For example, compare the depth and quality of Jim Tiemstra’s work to the memo we got. My other colleagues in the back row have similar and helpful comments backed by law and reasoning. By the way, we really need the actual memo(s) and messages sent to DP in the request for work, not an interpretation of what they were asked to do as we were sent. It would help us understand whether they were asked for a position memo or neutral interpretation. What were the limitations on their engagement? And I would agree that DP did *not* opine that Vice Directors are not compliant with CT law as well pointed out.
The ABA has issued opinions on the ethics of and necessity of multijurisdictional practice, such practice being common and inescapable these days. For example, lawyers all over the country are called upon to interpret Delaware Corporate law for their clients in their own state. Sometimes this is accomplished in conjunction with local counsel, sometimes not depending on circumstances. In my example, the remote state’s lawyers’ provide opinion on the quality of the Delaware counsel’s analysis as you see presently.
I find that the well-considered legal reasoning in John’s comments, those of Mike Raisbeck and the extensive and unassailable reasoning of Jim Tiemstra to be far superior to that of the informal memo presented by our Connecticut lawyers. Focus criticism on the analysis. The DP work product is surprisingly short on depth and proper legal analysis. You need not be a lawyer to see that. Compare their work to the legal analysis provided by the three very capable Vice Directors/lawyers I reference. That discussion is useful. Your comment and the similar criticism by others avoid that question. Focus on what may be wrong with the counterpoints taken.
By way of analogy, a skilled physician may not be licensed to practice medicine in all states, but that physician’s experience and skill may be no less useful across state lines. Registered professional engineers, which I represent from time to time in contract performance disputes, face the same issues. Licensing is important, but it doesn’t change the skill of the professional in presenting a cogent argument and analysis within their company or organization. All three of my colleagues have done that and I see no response yet, except for “you’re not a Connecticut lawyer”. Or we pay DP lots of money and they are known to be the best. Fair enough, but not conclusive and it misses the point. Just compare the quality of the analysis even from a non-lawyer point of view. The work product of lawyers is typically used to explain a situation to non-lawyers, as someone touched on last night. What is missing from the counterpoints raised? Hey, give DP the comments and let them help us understand why perhaps we just miss the point. If the four lawyers in the back row are wrong, DP needs to set us straight with better argument and analysis rebutting the logic presented. What’s wrong with that? That is what good lawyering is about. What is it about John’s comment’s that are otherwise wrong? If it is that you don’t know because you’re not a lawyer, you have your answer. But still, I feel confident you appreciate the well-reasoned arguments.
BTW, the webinar was useful to hear the opinions of those speaking and surprisingly calm. Are we experiencing a sea change?
*Bob Famiglio, K3RF*
*Vice Director, ARRL Atlantic Division*
610-359-7300 <(610)%20359-7300>
www.QRZ.com/db/K3RF <http://www.qrz.com/db/K3RF>
*From:* arrl-odv [mailto:arrl-odv-bounces@reflector.arrl.org <arrl-odv-bounces@reflector.arrl.org>] *On Behalf Of *G Widin *Sent:* Tuesday, May 02, 2017 8:42 AM *To:* John Robert Stratton *Cc:* arrl-odv *Subject:* [arrl-odv:26441] Re: The ARRL Corporate Structure IS Legal — And In Compliance With Connecticut Law
Let's see:
- Interpreting Connecticut law. - Advising a Connecticut corporation on legal issues
This sounds like the practice of law. So, have you then been admitted to the Connecticut bar?
Greg, K0GW
On Mon, May 1, 2017 at 3:58 PM, John Robert Stratton <N5AUS@n5aus.com> wrote:
Directors, Vice Directors and Officers
* We have been told that the long established ARRL corporate structure of an elected Director and an elected Vice Director, with automatic right of succession and a full, but standby, right to vote and act as his/her companion Director, is not legal under Connecticut law.*
* That statement is not true*.
Connecticut law expressly permits — and has permitted for a very long time — a nonstock corporation to establish a corporate governance structure "*... for the conduct of lawful activities with such variations and modifications ... as the interested parties may agree upon*." The Supreme Court of Connecticut, in reviewing the governing statute, observed "*The practical effect of these sections is to afford considerable latitude to the parties to a corporate venture to design an enterprise to fit their particular needs, without statutory encumbrance*." *Steeneck, et al v. University of Bridgeport, et al*, 668 A.2d 688 (Supreme Court of Connecticut - 1995).
It took less than 20 minutes to find the applicable statutes and Connecticut Supreme Court opinion.
As Vice Director Raisbeck pointed out, the ARRL is considered by Connecticut law as a "pre-1997" corporate entity. This means the ARRL's certificate of incorporation is dated before January 1, 1997. The General Statutes governing the formation and structure of a Connecticut nonstock corporation were revised with an effective demarcation date of January 1, 1997. The revised statutes, known as the *Connecticut Revised Nonstock Corporation Act*, expressly permits a "pre-1997" entity to chose to be governed by either the older statutes or the Rev'd Nonstock Act:
(b) If the certificate of incorporation, in effect on January 1, 1997, of a corporation without capital stock formed under the laws of this state, whether general law or special act, prior to said date, contains any provision contrary to, inconsistent with or in addition to any provision of sections 33-1000 to 33-1290, inclusive, but which provision was permitted to be contained in such certificate pursuant to the provisions of applicable law as in effect prior to January 1, 1997, the provision contained in such certificate shall govern such corporation and the provisions of said sections shall not be held or construed to alter or affect any provision of the certificate of incorporation of such corporation inconsistent herewith, except as provided in sections 33-1181, 33-1203, 33-1243 and 33-1244. *CT Rev'd Nonstock Corporation Act §33-1001(b).*
* However, for the purpose of determining whether the long established ARRL structure is valid and legal, it makes no difference to which set of statutes we look — the pre-1997 General Statutes or the CT Rev'd Nonstock Corporation Act. The outcome and the answer are the same*.
The pre-1997 statute is *General Statutes* §33-420*.* It states:
This chapter *shall be construed as to provided for a general corporate form for the conduct of lawful activities with such variations and modifications from the form so provided as the interested parties may agree upon,* subject to the interests of the state and third parties. Whether or not a section of this chapter shall contain the words 'unless the certificate of incorporation or bylaws otherwise provide', or words of similar import, no provision of a certificate of incorporation or bylaw shall be held invalid on the ground that it is inconsistent with such section unless such section expressly prohibits variations therefrom, or prescribes minimum or maximum numerical requirements or a substantial interest of the state or third parties is adversely affected thereby.
The post 1997 statute is *CT Rev'd Nonstock Corporation Act §33-1001. *It says:
§33-1001. Construction of Statutes.
(a) Sections 33-1001 to 33-1290, inclusive, *shall be construed as to provided for a general corporate form for the conduct of lawful activities with such variations and modifications from the form so provided as the interested parties may agree upon*, subject to the interests of the state and third parties. Whether or not a section of said sections contains the words 'unless the certificate of incorporation or bylaws otherwise provide', or words of similar import, no provision of a certificate of incorporation or bylaw shall be held invalid on the ground that it is inconsistent with such section unless such section expressly prohibits variations therefrom, or prescribes minimum or maximum numerical requirements, or a substantial interest of the state or third parties is adversely affected thereby.
As mentioned above, the Supreme Court of Connecticut addressed the right, and authority, of Connecticut nonstock corporations to create a "general corporate form" as they saw fit in the *Steeneck, et al v. University of Bridgeport* case. The University of Bridgeport had created a three-tiered set of trustees. A dispute developed between two of the three sets of trustees. The principal issue in Steeneck was whether one set of the trustees had "standing" to bring the suit. What was never questioned was the legality of the University of Bridgeport's structure of multiple trustees.
The Supreme Court stated: "*In this regard* [referring to the University's tied structure], *we note that the act clearly envisions that individual corporations may deviate from the simple, traditional framework it recognizes for corporate management. See General Statues §33-420 (Footnote 15).*
Footnote 15 reads:
This chapter *shall be construed as to provided for a general corporate form for the conduct of lawful activities with such variations and modifications from the form so provided as the interested parties may agree upon,* subject to the interests of the state and third parties. Whether or not a section of this chapter shall contain the words 'unless the certificate of incorporation or bylaws otherwise provide', or words of similar import, no provision of a certificate of incorporation or bylaw shall be held invalid on the ground that it is inconsistent with such section unless such section expressly prohibits variations therefrom, or prescribes minimum or maximum numerical requirements or a substantial interest of the state or third parties is adversely affected thereby.* See also S. Cross, Connecticut Corporation Law (1989) §1.4: ("The first substantive section of each of the Stock and Nonstock Corporation Acts sets forth the broad, liberal policy of permitting 'interested parties' to agree upon variations and modifications from the corporate form provided by the code.... The practical effect of these sections is to afford considerable latitude to the parties to a corporate venture to design an enterprise to fit their particular needs, without statutory encumbrance.")*
* The ARRL's Corporate Structure Has Been Legal For A Long, Long Time*
What has been carefully ignored by the proponents of eliminating the Vice Directors is that the ARRL's corporate structure was not created by two Novice licensees while chowing down on a Yanni's sausage Grinder. It was formed by men of stature based on the advice of competent legal counsel. That structure — the structure which has never been questioned — was legal when it was created. It is disingenuous in the extreme to suggest those lawyers were incompetent.
Whether that structure is examined under the pre-1997 law (*General Statutes §33-420*) or the current law (*CT Rev'd Nonstock Corporation Act §33-1001) — *the ARRL's corporate form is — and has been — legal under Connecticut law for a very long time.
* The Day Pitney "Memorandum"*
I won't address the shortcomings of the Day Pitney "Memo" — it was brilliantly debunked by Vice Director Tiemstra — except to note, as did Vice Director Tiemstra, it does not state the ARRL's general corporate form of an elected Director and an elected Vice Director, with automatic right of succession and a full, but standby, right to vote and act as his/her companion Director, is not legal under Connecticut law. Only the Gallagher, Bellows, Imlay "memos" of 4.3.17 and 4.28.17 make that unfounded, unsupported claim.
What was easily found by a "non-Connecticut" lawyer in 20 minutes was simply ignored by the "preeminent" Day Pitney.
* The "Fighting For Their Political Life" Email*
There has been too much of personal insults this afternoon. It truly gets old.
However, there is an email from a Director that insults 15 (well, 14, excluding the questionable guy from Texas) men and women whose service to Amateur Radio is of no less value that the condescending Director. I am offended, not on my behalf, but on the behalf of the 14.
It smears the Vice Directors with the allegation that their opposition is based on their "fighting for their political life." Horse Pooey. That is a coward's insult.
All of the Vice Directors with whom I am honored to serve — and with whom I have spoken — serve, for free, as do the Directors because of their love of Amateur Radio and the League. I haven't spoken to one regarding this matter whose opposition is based on the cornucopia of benefits bestowed upon them as Vice Directors or the opportunity to twice a year bask in the tropical paradise of Newington, Connecticut. Their opposition — as is apparently that of 9-10 Directors, based on current reports — is founded on the law, their belief as to what is best for the Members and their belief as to what is best for the League.
* Let's Vote, Why Don't We*
We have all been cautioned to not question our "preeminent" betters and to not even think of — can I use that word? — "voting".
I respectfully suggest we do just that. It will not be a binding vote, but rather than waste any further time on this matter, it would do well to have a "sense of the Board" — both the Front 15 and the Back 15.
With all due respect,
_______________________________________
John Robert Stratton
N5AUS
Office Telephone: 512-445-6262 <(512)%20445-6262>
Cell: 512-426-2028 <(512)%20426-2028>
P.O. Box 2232
Austin, Texas 78768-2232
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