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7.15.09  Part Three of  Four

Governing Well:

Re“Member” Troy?

As the Convention approaches, those within the Antiochian Archdiocese would do well to remember how Metropolitan +Philip “counted” the votes at the 2005 Convention in Troy, Michigan:

- Persons present were counted as only one vote and

   all proxies were ignored;
- Trustees each had one vote; and
- A vote was ostensibly taken of the "members".

By entirely disregarding the votes represented by proxies, +Philip was able to birth an entirely new means of financial assessment, effectively ramming it down the throats of our parishes without a vote being taken in accord with either the Constitution or the law—a vote which he well may have lost.

Procedural non-compliance? Sure.

Meaningless? Ask one of the many parishes which have been burdened financially as a result.

With this kind of ham-fisted management style, is it any wonder that folks are mistrustful of Metropolitan +Philip?

I could cite the New York law that demonstrates how proxies must be counted, but I’m thinking that would just be overkill, given that the readers all have common sense  - and access to the Archdiocesan Constitution (here).

But what is improper about Trustees voting?

Article V, Section 4(C)(1) of the Archdiocesan Constitution (here) provides that “[a]ll regular members of the Board of Trustees of the Archdiocese shall be delegates at large and shall be entitled to one vote.” This is the same Constitution which provides for the existence of at least thirty-three “Trustees” who are not Trustees at all. Assuming that New York law even permits legitimate Trustees to vote, roughly 75% of  the “Trustees’” votes were invalid.

But the problem is, Trustees aren’t supposed to be voting at all. You see, Section 613 of New York Not for Profit Corporation Law (here) only permits “members” to vote, thus:

"§ 613. Vote of members.

(a) Except as otherwise required by this chapter or by the certificate of incorporation or the by-laws as permitted by this chapter, directors shall be elected by a plurality of the votes cast at a meeting of members by the members entitled to vote in the election.

(b) Whenever any corporate action, other than the election of directors, is to be taken under this chapter by vote of the members, it shall, except as otherwise required by this chapter or by the certificate of incorporation or by by-laws as permitted by this chapter, be authorized by a majority of the votes cast at a meeting of members by the members entitled to vote thereon.

(c) Except as provided in paragraph (b), any reference in this chapter to corporate action at a meeting of members by "majority vote" or "two-thirds vote" shall require the action to be taken by such proportion of the votes cast at such meeting, provided that the affirmative votes cast in favor of any such action shall be at least equal to the quorum. Blank votes or abstentions shall not be counted in the number of votes cast."

What in the world is a “member?” Now THAT is a question for which New York Not for Profit Corporations Law provides a deceptively simple answer:

"“Member” means one having membership rights in a corporation in accordance with the provisions of its certificate of incorporation or by-laws." (Article I, Section 102(a)(9).

Clear enough, eh?

Unfortunately, the original Certificate of Incorporation (here) does not define the term “member.” The 2003 Amendment (here) that illegally ballooned the number of Trustees does not define “member.” Likewise, the ill-conceived 2006 Amendment (here) designed to keep the Holy Synod’s arm from reaching into Archdiocesan affairs is devoid of a definition of “member.”

Having established that New York law defers to a corporation’s Certificate of Incorporation and that the Certificate of Incorporation fails to provide a definition of “member,” we must hope that the Constitution provides it. Surprise of surprises—our careful drafters provided nothing that ties to New York law! The Archdiocesan Constitution  (here) does not define a “member” for purposes of Archdiocesan voting. All we get is some vague notion of a “unit”—whatever that means—that is mentioned eight times exclusively in relation to Church property and never in relation to voting:

Section 1 This Archdiocese consists of all dioceses, churches, missions, parishes, monasteries, departments, agencies, orders, societies and committees in North America (“units”) heretofore or hereafter established by the Archdiocese of North America under the jurisdiction of the Apostolic Greek Orthodox Patriarchate of Antioch and all East as exercised by its duly authorized Metropolitan Archbishop acting under."

Who, then, may vote?

Although it’s quite clear that Metropolitan +Philip should have thrown out the votes of the false “Trustees” back in Troy (in addition to respecting the proxies), the language quoted directly, above, does seem to imply quite strongly that members are only “dioceses, churches, missions, parishes, monasteries, departments, agencies, orders, societies and committees.”

Standard business corporation rules, in which a director (equivalent to a Trustee) is not entitled to vote as a shareholder (equivalent to a member) in his capacity as a Trustee (i.e. he must hold shares in order to vote as a shareholder), provides an excellent analogy. A reasonable person could easily infer that no Trustee is entitled to vote as a member in matters subjected to the vote of the membership.

Finally -- for you lawyers out there (and apologies to everyone else for the convoluted language) -- given that these matters would be reviewed in a court of equity, the implication and inference would likely carry even greater weight there than they likely would in a court of law.

And you thought the definition of “auxiliary” was a sticky wicket...

-An Antiochian Orthodox Lawyer


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