Monday, May 8, 2017
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Senior Lawyers Section ‘Condemns’ LACBA’s Invalidation of Election Results
Trustee William L. Winslow Defies ‘Gag Order’ Imposed on Members of the Governing Body,
Terms the Calling of a New Election ‘Egregiously Improper’
By a MetNews Staff Writer
The Los Angeles County Bar Assn. has acted in contravention of statutory and constitutional law, as well as the association’s bylaws, in connection with the nullification of this year’s election of officers and trustees, the barring of trustees from making any public on the matter, and the setting of a new election, LACBA’s Senior Lawyers Section said in a strongly worded resolution released Friday.
William L. Winslow, a member of LACBA’s Board of Trustees, on Friday disregarded a ban on commenting on the election, saying in an open letter to association President Margaret Stevens that the “re-opening of the election process is egregiously improper” and calling upon her “to immediately take the necessary steps to undo this grossly illegal action.”
LACBA’s action was taken based on the “leak” of information to this newspaper—assumed by the organization to have been by a member of the Nominating Committee—of the unsuccessful lobbying by Immediate Past President Paul Kiesel to have last year’s losing candidate for president-elect, Michael Lindsey, nominated for that same post this year. Lindsey was defeated, in 2016 balloting by the association’s membership, by a vote of 448 in his favor and 1,273 for Michael E. Meyer, who is slated to become president on July 1.
The association declared Wednesday that the decision to hold a new election “was solely based on the compromised confidentiality of the process and was necessary to uphold the integrity of LACBA’s nomination and election process.”
‘Rump Board’
The Senior Lawyers Section resolution, unanimously approved by the unit’s Executive Committee Thursday night, refers to the persons who scrapped the election results as a “Rump Board.” At the April 26 meeting of the Board of Trustees, 16 members of the 28-member body were barred from participating in the closed-door discussion of the election.
Eleven or 12 “non-recused” members participated in that discussion and decided, on a split vote, to hold a new election.
The resolution sets forth that the Senior Lawyers Section “condemns the actions of the Rump Board in wrongfully invalidating the 2017-2018 election of officers and trustees of LACBA” and condemns the calling of a new election, the secrecy surrounding the matter, the “silencing of Trustees who seek to lawfully discharge their duties and to speak on behalf of the members of LACBA,” and for violation of their rights of free speech.
In forwarding a copy of the resolution to newspapers, former LACBA President Charles E. Michaels, the chair-elect of the Senior Lawyers Section, remarked that he is “offended by the actions of a small minority of Trustees at the Los Angeles County Bar Association who have attempted a coup at the Bar.”
Winslow’s Remarks
Winslow, in his letter to Stevens—a copy of which was sent to other trustees and to those who were nominated for officer and trustee posts—said:
“There is nothing in the Association’s rules that authorizes the Board to initiate a second electoral process. Even if the finding that the Confidentiality Agreement was breached is considered correct, the remedy for the breach which the Board adopted does not exist; it is not lawful. It is like trying to collect general damages in a garden-variety breach of contract case.”
Winslow decried the issuance of an April 27 directive to trustees by Co-Acting-CEO/General Counsel Clark Brown to desist from making comment to the news media on the election. (A March 24 email, from the communications director, Jason Ysais, purported to bar any statements by trustees to the news media “about” LACBA.)
Winslow remarked:
“[A]t times it is necessary and proper for a Trustee to criticize, to LACBA members and/or the public and/or the media, a decision by the LACBA Board of Trustees that the Trustee considers illegal, foolish, dishonest, or tending to bring the Association into disrepute. I have a First Amendment right to criticize the decision to invalidate the work of the Nominating Committee; and I do so in furtherance of my fiduciary duty to the Association, particularly my duty of loyalty.”
12 Nominees
The Nominating Committee on Feb. 27 nominated trial lawyer Brian S. Kabateck of Kabateck Brown Kellner, LLP, as president-elect; current Vice President Tamila C. Jensen, a San Fernando Valley attorney, as senior vice president; and current Senior Vice President Philip H. Lam, a Los Angeles deputy city attorney, as vice president.
Nominated as trustees were Susan J. Booth, Tanya Forsheit, and Jennifer W. Leland (at large members); Kristin Adrian, Matthew W. McMurtrey, and Kevin L. Vick, (representing sections); and Firoozeh “Faye” Nia, Michael R. Sohigian, and Felix Woo (representing affiliated bar associations).
Two days after the committee made its nominations, the MetNews told of Kiesel’s failed effort to have Lindsey nominated in favor of Kabateck, who was the Meyer’s choice.
An election would have been called, as it was last year, for the first time in 25 years, if someone had challenged a Nominating Committee nominee through gathering 100 signatures on a petition. No petitions were filed by the March 22 deadline, and LACBA on March 23 publicly declared that the nominees were elected.
LACBA’s Statement
LACBA said in a statement posted May 3 on its website, announcing election deadlines:
“The Board had previously determined at its March 22 meeting that the appearance of a breach of confidentiality, demonstrated by media reports on that process, required an independent investigation of the 2017 Nominating Committee process. It established a three-member Task Force and retained outside counsel, who conducted an investigation and reported back to the non-recused members of the Board at the April 26 meeting. All members of the Board who had been involved with the nomination process were recused from participating in the discussion or decision on this issue.
“Based on the findings of that Report, the non-recused Board determined that the nomination process had been seriously compromised by breaches of confidentiality and decided to re-conduct the Nominating Committee process for 2017, including: selection of confidential Nominating Committee members, conducting one or more meetings to determine a proposed slate of Officers and new Trustees for the 2017-2018 bar year, releasing the identity of those nominees, then allowing for contesting candidates to submit their candidacy, if any, and finally to determine if an election process is required.”
The announcement said declarations of an intent to seek nomination by the Nominating Committee must be filed by May 11, and that the Nominating Committee is expected to make its choices by May 19.
On Friday, further details were posted on the website. It was announced that nominating petitions for challengers to nominees of the Nominating Committee would be due June 15, and balloting would end June 30.
New officers and trustees are, under the bylaws, to take office July 1.
The deadlines were moved up this year, through amendment to the bylaws, to allow more time to plan the installation dinner, generally held in June. No dinner has been planned yet.
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Text of Senior Lawyers’ Resolution
WHEREAS. During the April 26. 2017 meeting of the Board of Trustees of the Los Angeles County Bar Association (LACBA), a minority of the trustees who were dissatisfied with the official election results for LACBA officers and trustees for the coming year of 2017-2018 (the ‘“Election”‘) voted to invalidate the results of the lawfully held member Election of officers and trustees; and
WHEREAS, During the April 26th meeting, a number of trustees were wrongfully expelled from the Trustees meeting, denying them their rights to participate in the meeting and to represent the members of LACBA in discussions regarding the Election, including voting on the proposed actions of the Board; and
WHEREAS, LACBA issued “gag orders” prohibiting Trustees from speaking about the Election and the process that purportedly invalidated the Election; and
WHEREAS, This same minority of Trustees (the “Rump Board”) is now attempting to conduct another election of officers and trustees, in violation of LACBA bylaws and the California Corporations Code; and
WHEREAS. The bylaws of LACBA were disregarded, probable violations of the California Corporations Code occurred, and fundamental due process for both the majority of the Trustees and ejected Board members of LACBA were violated;
NOW THEREFORE, The Senior Lawyers Section condemns the actions of the Rump Board in expelling duly elected Trustees of LACBA. including the Trustee from this Section; and
RESOLVED FURTHER, The Senior Lawyers Section condemns the actions of the Rump Board’s in wrongfully invalidating the 2017-2018 election of officers and trustees of LACBA; and the Section further condemns the Rump Boards attempt to conduct another election; and
RESOLVED FURTHER, The Senior Lawyers Section condemns the secrecy, lack of transparency, and the silencing of Trustees who seek to lawfully discharge their duties and to speak on behalf of the members of LACBA, and for violating their free speech rights under the U.S. and California Constitutions; and
RESOLVED FURTHER, The Senior Lawyers Section authorizes, empowers and directs its Chair and Chair-Elect to petition the Trustees to (1) formally reconsider its actions, (2) to hold a special, full meeting of the entire Board of Trustees, and (3) to follow LACBA bylaws, the California Corporations Code, and good corporate governance practices, including, but not limited to fundamental due process, all as may be in the best interests of LACBA and its members; and
RESOLVED FURTHER. That the Chair and Chair-Elect of the Senior Lawyers Section are directed, authorized and empowered to perform such acts and execute such documents as necessary or desirable to accomplish the resolutions set forth herein and the intentions of the Senior Lawyers Section as generally discussed during the May 4, 2017 Meeting of the Executive Committee.
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Text of Letter From William L. Winslow
The action of the Board of Trustees on April 26, 2017 in closed session, in voting to invalidate the work of the Nominating Committee and creating a second Nominating Committee process, has no basis in the articles, by-laws, or other rules of the Los Angeles County Bar Association.
The Board action imposes a collective punishment on 12 outstanding candidates (“outstanding” being the adjective you were quoted as using) for office, even though they are free from blame regarding any breach of confidentiality in the Nominating Committee process. Is the violation of Mr. Keesal’s [sic] and Mr. Lindsey’s right to keep secret Keesal’s support for Lindsey’s candidacy more important than the right to fair treatment of the 12 who were properly nominated and elected? To do what the Board has done because of a disclosure of information about one veteran bar leader supporting another veteran bar leader—information which, even if deemed confidential, is not the central thrust of confidentiality agreements in this context—is to exalt one mid-level failure of proper process over the duty of our Association to be fair to the 12 candidates.
Please consider again what we are doing to these properly nominated (and with the passage of time, properly elected) outstanding 12 persons. They had nothing to do with any violation of confidentiality.
One of the several reasons why a re-opening of the election process is egregiously improper is that the by-laws include various deadlines for the accomplishment of multiple steps in the process. Protecting reasonable intervals in the electoral process is essential to its fairness, to the due process requirements by which the Association is bound.
At the December 2016 meeting of the Board of Trustees, you explained that changing the election dates requires proper notice of a meeting to consider proposed changes to the by-laws. I think you surely will recall that you adopted a suggestion, made at that meeting, that a special Board meeting be called in order to comply with the proper procedure for amending the by-laws, including advance notice of proposed changes in writing. How can the calendar that is integral to LACBA’s electoral process, that required proposed written amendments based on advance notice to all of the Board, be thrown out by a less than a majority of the Board of Trustees, at a meeting called with no prior notice of these proposed actions? I urge you to immediately take the necessary steps to undo this grossly illegal action.
There is nothing in the Association’s rules that authorizes the Board to initiate a second electoral process. Even if the finding that the Confidentiality Agreement was breached is considered correct, the remedy for the breach which the Board adopted does not exist; it is not lawful. Il is like trying to collect general damages in a garden-variety breach of contract case.
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I also call on you to disavow and rescind the April 27, 2017 email by General Counsel Clark Brown which accompanied the “Statement on Re-Conducting the 2017 LACBA Nominating Committee Process,” in which he said that Duncan Crabtree-Ireland “…has been designated by the Board to speak on this issue” and requested that Board members “...direct all requests [from the press] for comment to Duncan or Jason Ysais...and do not make a statement to the press on your own.”
This email seeks to impede me and other Board members in pursuing our fiduciary duty to the Association, including specifically the duty of loyalty; and it also seeks to interfere with Board members’ First Amendment rights. I know of no resolution by the Board designating Mr. Crabtree-Ireland; I think he would not be so designated by the full Board of Trustees to be spokesperson; and, even if he were designated as some sort of “official spokesperson”, that would not mean my duties and rights should or could be diminished.
Mr. Brown has gone beyond his authority and you should not countenance it. In the open part of the April 26 meeting his remarks gave the impression that he thinks the Association’s officers and operations really ought to be immune from criticism. But at times it is necessary and proper for a Trustee to criticize, to LACBA members and/or the public and/or the media, a decision by the LACBA Board of Trustees that the Trustee considers illegal, foolish, dishonest, or tending to bring the Association into disrepute. I have a First Amendment right to criticize the decision to invalidate the work of the Nominating Committee; and I do so in furtherance of my fiduciary duty to the Association, particularly my duty of loyalty. I can adhere to this duty without disclosing confidential information.
It is not too late for you to restore legitimacy and fairness to the Association’s affairs.
Copyright 2017, Metropolitan News Company