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May 08, 2014

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Julia McCready

Thank you for being there tonight.

Harry Schwarz

This is really well said, Bill. I believe this too, and its something to herald to the world. Funny thing, I'll bet Liz Bobo, Alan Klein, and others believe this too. We are one Columbia in many ways. Somehow, we haven't learned to play fair and keep the conversation civil. I've gotta think we're not going to achieve greatness until we can begin to work together.

Alan Klein

Harry, I had exactly the same thought you did. Absent the first two paragraphs, I could have written this blog posting.

And, the first paragraph is so clearly uncivil that, for me, it makes it hard to believe that the author actually believes the rest of it.

Gregg Schwind

Bill, thanks for telling the rest of the story and for taking the time to be at last night's meetings. It is unfortunate for everyone that democracy and transparency were subverted in Oakland Mills. And yes, it will be a long year.

Julia McCready

No, it is what happened at the Board Meeting last night that was uncivil. I am embarrassed to admit that I believed that the Board would stand by its ethics policy. Silly me.

Harry Schwarz

Alan, there's a famous saying: "Why do you see the speck that is in your brother’s eye, but do not notice the log that is in your own eye?"

Bill Woodcock

I think we can all join in feeling sorry for Alan. It is unfortunate that he and others are angry and fearful such as to be blind to the fact that their actions serve to deny current and future generations of the dream that they have enjoyed. I hope a lot of people pray for you, Alan. I really do.

Alan Klein

Harry,

Please point me to anything that I have said or done that is anywhere near as uncivil as Bill's comments about me and Russ or Gregg's comments about the Village of Oakland Mills. I would like the opportunity to be held accountable for such remarks or actions.

Until then, the log and the spoeck are both in your court!

And, do you get the irony of you making that comment, which means you don't see the log in your own eye (at least if the aphorism is accurate)?

Alan Klein

And, Bill, you might want to check your focus. Your projections are running wild!

But I do have to admit to being impressed with their venom!

Alan Klein

Julia,

last night's discussions were civil, thorough, and respectful. Everyone had a chance to speak and everyone listened to each other.

The Ethics Policy was amended and the Board did, indeed, stand by its policy.

Joel Hurewitz

I came to this debate over the conflict of interest only recently. However, after attending Thursday’s meeting I did what few others in community, on the CA Board, or CA staff seem to have done: I read the CA Charter and By-Laws. Several of the provisions of the Code of Ethics are in direct conflict with specific provisions in the Charter and By-Laws. Other sections amount to constructive amendments of the governing documents. The Charter and By-Laws require that the public be given 30 days notice of any proposed changes in the newspaper, and that Board approve Charter amendments by a 2/3 vote. By amending the Ethics Code by simple majority vote without public notice, the Board has disregarded the governing documents by making de facto amendments. In doing so the Board has breached the duty of care and the duty of obedience. Ironically by creating the Ethics Code which ignores or constructively changes the Charter and By-Laws, the CA Board has in fact acted unethically. Notwithstanding the consternation that some have expressed about the Code being ignored, in many respects, the Code of Ethics provisions are ultra vires rules of the CA Board and should be considered null and void.

Bill Woodcock

Joel, thanks for your thoughts on this. Good of someone to actually read the documents! That's part of what had me miffed about all the pontification-- no one had basis for their position within the context of CA's governing documents.

Other stuff I thought was bizarre-- Mr. Avery being permitted to participate in the board's planning retreat and Thursday night, conduct business (vote) as part of the Board of Directors before the motion to allow him to serve on the board! Not sure what Board of Directors would allow those nominated but not yet approved to serve, to serve.

Joel Hurewitz

Bill,

Thanks for your support.

However, your pontification in fact is part of the issue. I believe that the entire political conflict rule and upset within the Oakland Mills community and discussion and vote to change the Ethics Code should never have happened because it violates the Charter and By-Laws. Mr. Avery had as much right as the other new members to participate.

In addition, the suggestions of other Board members Thursday that he not be allowed to vote on the issue is counter to the spirit of one Charter provision. It is also specially prohibited in the penultimate sentence of the Charter and in one section of the Bylaws as well.

Moreover, for those of you who also have some major concerns about the political conflict rule consider this fact. Prior to the change in the rule Thursday night, a CA Board member could be APPOINTED to political office and never have to resign because they were never a candidate. Think for example, a CA Board member could be appointed to complete the term of County Executive and would not be in conflict with the Ethics Code (until Thursday night). This also shows how arbitrary and capricious the rule is and has no place outside of the Charter itself, properly amended.

Bill Woodcock

Hi Joel,

Sorry to not be clear. My point is exactly that-- that since Reg was allowed to participate in these events, that the community upset and discussion and vote were all ready kind of moot.

Bill Woodcock

*really kind of moot

Joel Hurewitz

The community should not have even had this as an issue. The people from Oakland Mills need not have written emails. They need not have come to the meeting. The Board need not have spent however many hours that took on Thursday. The Code of Ethics is the problem not the waiver or the amendments.

I have been reading blogs this afternoon. Everyone accepts that the Code of Ethics trumps the Charter. Why? How did this happen? When did CA organize itself around a Code of Ethics rather than the Charter and By-Laws?

Gregg Schwind


Joel:

An organization such as CA desperately needs and rightly has a Code of Ethics for its Board members and Staff to adhere to. Thankfully, none of the foundational documents bars such a Code. The Charter, By-laws and Ethics Code function hand in hand. Ideally at least. Assessment-paying residents need to know that their dollars are being spent not only legally and wisely, but also within some basic ethical framework. I'm not willing to debate that.

The arbitrary and capricious part of this was when a majority of the Board chose to change the Ethics Code to suit a particular outcome. An Ethics Code, however, is not situational, and residents were entitled to notice and public comment on the proposed change before it was implemented. Many of the same people who voted in favor of the sudden ethics rules change are those who, in the past, have railed bitterly against the lack of transparency, notice, public comment, etc. with respect to other Board decisions. In some cases, these criticisms were correct. But the important point here is that these principles shouldn't be situational either.

Julia, I thought the Board would stand by its policy too. I did not mean to impugn the village or VB; what happened was engineered by a very small number of residents. My view, anyway.

We can do better. It is just the start of a new year. Hopefully we will.

Gregg

Joel Hurewitz

Gregg,

As an attorney your duty of care as an director is higher because it is that of persons with similar expertise with a legal background. That you seem not to understand or perhaps even care why the Code of Ethics improperly has amended the Charter and By-Laws in numerous provisions is disappointing and troubling.

Yes, the residents need to know that the Board is acting without the dictates of the Charter and By-Laws. The Ethics Code is unethical because the Board has disregarded and/or effectively amended the Charter and By-Laws. When was the last time you read the Charter? Read the financial conflict provision against the Code of Ethics and tell me why the Code is superior to the Charter. Tell me why it was permissible to suggest that Reg Avery not vote on the issues affecting him. See Seventh paragraph 5 of the Charter and Section 1.06 of the By-Laws.

Yes, you can do better. You can follow the Charter and By-Laws.

Joel Hurewitz

Correction:


Yes, the residents need to know that the Board is acting WITHIN the dictates of the Charter and By-Laws

Joel Hurewitz

Gregg,

Please read:


Ultra Vires Acts: Why Nonprofits Must Follow Their Articles &Bylaws
Posted on July 14, 2010 by Ellis Carter

http://charitylawyerblog.com/2010/07/14/nonprofit-law-jargon-buster-ultra-vires-acts/


Second, if directors act in ways that conflict with the nonprofit’s governing documents, they may be opening themselves up to an argument that they are breaching their fiduciary duties including the duty of due care and the duty of obedience. In most states, fulfilling one’s fiduciary duties is a prerequisite to a statute that basically says the board members can’t be held personally liable for their mistakes so long as the mistakes were made in good faith, out of loyalty and obedience to the corporation, and with due care. By failing to fulfill their fiduciary duties, the directors risk personal liability for any harm caused by their actions.


* * * *

Officers and directors of nonprofit corporations who ignore the nonprofit’s articles of incorporation and bylaws are setting themselves up to be on the losing side of a lawsuit that could hold them personally liable for the consequences.

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