Friday, May 5, 2017
Page 9
PERSPECTIVES (Column)
Wrongdoing in LACBA: Schemers Slate New Election
By ROGER M. GRACE
Bastards.
Those underhanded bastards.
Foes of reforming the financially failing Los Angeles County Bar Association—an organization that for the past few years has hidden its finances and operated in virtual secrecy—have outdone themselves. Their dirty tricks in upsetting—or purporting to upset—this year’s election of officers because they don’t like the results are nothing short of scandalous.
LACBA Central—as the manipulators-in-charge have been dubbed by Trustee Bradley Pauley—on Wednesday posted an announcement on its website that declarations of candidacy are due May 11 and a Nominating Committee “is expected to complete its work by May 19, 2017.” The 2017-2018 leaders take office, under the bylaws, on July 1.
It is only through pretext and chicanery that the persons who were put up by the Nominating Committee on Feb. 27 for officer and trustee positions, and not opposed by any candidate through nomination-by-petition by the March 22 deadline, are not being recognized as having been duly elected, despite the March 23 public announcement by LACBA of their election.
Wednesday’s announcement of deadlines says:
“LACBA’s Board of Trustees decided at its April 26, 2017 meeting, to re-conduct the 2017 Nominating Committee process used to select its recommended Officers and new Board of Trustees members for the 2017-2018 bar year.”
That’s not quite so. It was a segment of the board that acted. A majority of 11 or 12 members of the board made the decision. The board is comprised of 28 persons.
Fourteen trustees were recused because they had been on the Nominating Committee, and that tainted them—or so the theory goes—given that it was someone on that committee (it’s assumed) who leaked information to this newspaper about internal politicking in connection with the nominations. My wife, who’s a trustee and was not on the Nominating Committee, was, over her protest, disqualified because she’s married to me and is co-publisher of the newspaper. A sixteenth person was banished because of a communication about the election with a lawyer who was not on the committee.
The announcement also says that the board “found that the nomination process had been compromised by breaches of confidentiality and decided to re-conduct the Nominating Committee process for 2017.”
In truth, the process was not “compromised.”
The brouhaha stems from a March 1 news story, which I wrote, saying:
Consumer attorney Brian S. Kabateck, founder and managing partner of Kabateck Brown Kellner LLP, is the choice of the Los Angeles County Bar Association’s Nominating Committee for president-elect of the organization, with the committee on Monday night spurning an effort by the immediate past president, Paul Kiesel, to gain backing for someone else.
The MetNews has learned that although Kabateck was favored by President-Elect Michael E. Meyer, who will become LACBA president on July 1, Kiesel pushed for the nomination of Michael K. Lindsey, a partner in Steinbrecher & Span. Meyer, chairman of the Los Angeles offices of DLA Piper, gained his post last June by defeating Lindsey—then LACBA’s senior vice president and treasurer—by a membership vote of 1,273 to 448.
Despite last year’s vote, Kiesel sought to have Lindsey nominated as president-elect this year, and Kabateck to be chosen either as senior vice president or vice president, according to a knowledgeable source.
Supposedly, the providing of information to me meant that the nominating process was “compromised,” thus invalidating the election. That’s balderdash.
The news story on Kiesel’s effort to have Lindsey nominated as president-elect could not conceivably have affected the Nominating Committee’s action because it came out two days day after the Nominating Committee made its decisions.
Did the news story intimidate Lindsey into refraining from running by petition? No, it came one day after Lindsey declared that he was not inclined to run.
So, even if someone on the Nominating Committee leaked information, it could not possibly have interfered with the election. There was no causation of harm.
(Even if a member of the committee did disclose Kiesel’s attempted power play, it is by no means clear that this violated the confidentiality agreement the Nominating Committee members signed. The article reflects no disclosure of discussions concerning the relative worthiness of the prospective nominees—and preventing that sort of information to be related was the apparent object of the confidentiality pledge. And note: the article does not specify whether the lobbying by Kiesel took place during one or both of the committee’s two meetings, or occurred outside of the meetings.)
The “leak” was seized upon by scheming opportunists in a transparent bid to “redo” an election that had already ended, with the prospect of altering the results. This goes beyond gamesmanship; it’s cheating.
Once the election was over, those who wished, in retrospect, that there had been a counter-slate, and would have liked to start over, had three options:
•They could have contested the election by asking the Office of Attorney General to bring, or authorize them to bring, an action in quo warranto. LACBA is a mutual benefit corporation and the entitlement to hold corporate offices may be tested by that means, though the process is cumbersome and seldom invoked. And chances of the AG’s Office giving the green light to a facially meritless challenge would not have been bright.
•They could have brought an election challenge under Corporations Code §7616, applicable to mutual benefit corporations, with a hearing generally set within five days of the filing of a complaint. But if they had done that, they would have made utter fools of themselves. Under a 1965 Court of Appeal decision, actions pursuant to statutory alternatives to quo warranto “must be limited to matters bearing on the question of the validity of the election” and matters relating to “behavior” within the corporation “cannot be considered unless they affect the validity of the election.” A 2013 Court of Appeal decision indicates agreement with that. Even if a member of the Nominating Committee violated his or her oath by leaking information, that would not have affected the validity of the election and could not be considered by a court.
•They could have recognized that whatever they might wish they had done wasn’t done, and it was now too late to do anything about the outcome of the election.
Only the third alternative was realistic.
Instead, a course was chosen that was not lawfully available. The results of the election were—purportedly—set aside by a handful of trustees.
Art. IV of the association bylaws, in §4, defines powers and duties of the trustees. They “shall manage the affairs of the Association in accordance with the Articles of Incorporation and these Bylaws.”
Nothing in the Articles of Incorporation or bylaws expressly or impliedly authorizes the action that was taken. There is no provision for undoing an election. The stunt was, plainly, ultra vires.
Art. VII deals with elections. Sec. 4 provides:
“If the number of candidates for each position to be filled at the annual election is equal to the number of positions to be filled, then the President shall instruct the Chief Executive Officer to cast a ballot for those nominated on the next business day after the deadline for filing additional nominations pursuant to Section 3 of this Article, thus unanimously electing all candidates.”
This ministerial duty was apparently carried out because the certified election results were publicly announced by LACBA on March 23. No one had been nominated by petition to run; nominees of the Nominating Committee had, under the bylaws, been elected; the election was completed.
Nonetheless, the LACBA website now declares that nominations are open—yet, they are open for positions that are already filled.
There was ramrodding here which causes me to suspect that Kiesel is an architect of the scheme. If not, his approach as president was surely an inspiration for it.
It was the arrogance of Kiesel, as president, that led to the formation in late 2015 of the Council of Sections to oppose policies and practices of his regime. Most of the policies and practices pre-dated his ascendency as president, but his evident conceit in thinking that he could, with charm and guile, shove down the throats of section leaders and other members whatever he desired—along with an intensified effort to regiment sections and members—caused the backlash.
It was the Council of Sections, chaired by past LACBA president John Carson, that last year gathered signatures on nominating petitions and ran candidates against most of those approved by the 2016 Nominating Committee. The council was, and is, comprised of leaders of sections, with principal roles being played by Carson, past president Charles Michaels, and Nowland Hong, chair of the Senior Lawyers Section and past president and a founder of the Southern California Chinese Lawyers Association.
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Causation? Feb. 27: LACBA’s Nominating Committee makes final decision on candidates it will nominate for offices. March 1: The MetNews reports that Immediate Past President Paul Kiesel had pushed, unsuccessfully, for the nomination of Michael Lindsey as president-elect. March 22: Deadline to file nominating petitions to challenge Nominating Committee candidates passes with no petitions filed. March 23: LACBA issues a release saying that the Nominating Committee candidates were elected. April 26: “Non-recused” members of the Board of Trustees vote to nullify the election because of information provided to the MetNews concerning Kiesel’s lobbying, assumed to have been a “leak” from a Nominating Committee member.
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The Council candidates—dedicated to turning LACBA back into an organization responsive to its members and responsible—were victorious.
How, then, could the outrageous machinations we’re seeing be taking place?
It’s because the Old Guard is still in the majority.
The reformers won the three offices on the ballot last year: president-elect, senior vice president, vice president.
Nine trustee seats were to be filled. Two of the Nominating Committee’s nominees were fully acceptable to the Council of Sections and were not opposed. Nominating petitions, each with far more than the required 100 signatures, were filed for seven candidates. However, one of them, Sheri Bluebond, chief judge of the Bankruptcy Court for the Central District of California, withdrew because she decided it would contravene judicial ethics to be in a contested race. Another nominee-by-petition was disqualified.
While the reform ticket prevailed in 2016, it remains that only eight reformers (including the three officers) were added to the Board of Trustees. Nine hold-over trustees remained (there are two-year terms), and most of them were not receptive to the changes that needed to be made. President-Elect Margaret Stevens automatically moved up to the presidency, and Kiesel stayed on the board, as immediate past president. Additionally, Stevens appointed three assistant vice presidents and a treasurer.
(In appointing assistant vice presidents, she initially chose three of the candidates who had been defeated for trustee slots. One dropped out, and as an apparent peace offering, she chose Bluebond, who, as it turns out, serves her well.)
Of the 28 trustees, less than half are determined to restore LACBA to what it used to be: an association that did not hide its finances from members and was fiscally responsible. The association has lost a third of its members and has been running in the red…yet it is cutting down on programs (without which membership becomes pointless) and diverts its funds to charitable projects of the Counsel for Justice.
If those nominated by this year’s Nominating Committee and duly elected take office on July 1, as they should, the reformers, led by Meyer, will turn LACBA around.
Resisting that, the Stevens Regime has defied the bylaws, ejected directors from meetings, and concocted rationales for doing the irrational.
Those seeking to undo a completed election have no more scruples than Cook County ballot box stuffers.
To allow their conniving to go unchallenged would be disgraceful.
Corporations Code §7616 not only provides a vehicle for contesting election results, but also confirming them. A 1979 Court of Appeal opinion declares that “[l]ogic requires” that a statutory alternative to quo warranto “must be available to those seeking to uphold a corporate election as well as to those who seek to oppose the election.”
Some member of LACBA who finds the maneuverings of the spoil sports to be intolerable should “sue the bastards.”
Copyright 2017, Metropolitan News Company