Tuesday, May 23, 2017
Plaintiffs Seek Order to LACBA Chief to Perform Duty
Complaint Is Amended to Allege Margaret Stevens’ Failure to Comply With Bylaw
By a MetNews Staff Writer
Litigation against the Los Angeles County Bar Association’s purported nullification of the results of an election is continuing, with the plaintiffs—two officers, two trustees, a past president and a candidate for a trustee spot—now seeking to have LACBA President Margaret Stevens ordered to cause the Feb. 27 choices of the Nominating Committee certified as victors.
A first amended complaint was filed yesterday, signaling that a cease-fire has not taken place despite Friday’s action of a second nominating committee in putting up the same candidates as the first one did, headed by litigator Brian Kabateck as president-elect.
The prospect looms of a contested election—like the one that took place last year for the first time in a quarter of a century—notwithstanding that it appeared earlier that nominees of the Nominating Committee were unopposed and there would be no balloting by the membership.
In explaining a second election, LACBA has claimed that there was a “cloud” over the first nominating committee’s processes because there were “leaks” and “lobbying.” This newspaper reported on March 1 that Immediate Past President Paul Kiesel had lobbied unsuccessfully for the nomination of 2015-16 Senior Vice President Michael Lindsey as president-elect.
Under Art. VII, §4 of the bylaws, if no candidates file nominating petitions to run for officer or trustee positions by the deadline—which was March 22 at 5 p.m.—the president “shall” direct the chief executive officer to cast a ballot for the Nominating Committee’s choices “thus unanimously electing all candidates.”
No nominating petitions were filed by the deadline, and on March 23, a LACBA spokesperson said:
“It has been confirmed that we are not having an election this year.”
Yet, the “President did not perform her mandatory duty” of causing the finalization of the election, a supplemental plaintiffs’ “supplemental brief,” filed yesterday, said.
Surfaced at Hearing
The fact that Stevens had not performed that duty emerged on May 16 at a hearing on a temporary restraining order sought by the plaintiffs, who wanted the court to bar a new election from proceeding.
On the basis of Stevens not performing the duty, Superior Court Judge James Chalfant concluded that no election had been held. He gave permission, however, for the filing of an amended pleading.
The amended complaint adds a prayer that “the Court issue a temporary restraining order, a preliminary injunction, and a permanent injunction ordering Defendant to direct its President, Margaret Stevens, to instruct Defendant’s CEO to cast a ballot for those nominated by the NomCom.”
If that were done at the hearing scheduled for June 13 on a preliminary injunction, or sooner, it would apparently finalize the initial election, and put an end to what has been termed by LACBA as an election “redo.”
The “redo” was ordered by a 6-5 vote on April 26 by the Board of Trustees—or what small portion of the 28-member board remained after voluntary and involuntary recusals, including all trustees who had served on the initial nominating committee.
Despite the new nominating committee duplicating choices of the first, the controversy is not over because, under a new election timetable, additional candidates could compete by filing nominating petition by 5 p.m. on June 15, with the election ending June 30—one day before new officers and trustees are to take office, under the bylaws.
The plaintiffs claimed yesterday that at the May 16 hearing on the application for a TRO, “LACBA’s counsel, W. Clark Brown, announced that the Bylaws were amended to permit the second election process.”
Five declarations of trustees—including Senior Vice President Philip Lam and Vice President Tamila Jensen, were presented stating that the bylaws had been not amended to permit a new election.
In a subtle allusion to secrecy that has surrounded the “redo”—including secret membership of the second nominating committee—the “supplemental brief” acknowledged a possibility that the bylaws were amended without the declarants’ knowledge.
If that happened, it said, “the proper procedure was not followed” in enacting new bylaws, “rendering them void.”
Even if validly adopted bylaws did authorize the holding of a new election, the memorandum sets forth, a new election would be violative of Corporations Code §7522 because “[t]he timeline for the purported second election does not permit LACBA’s members at least 50 days from the close of nominations to the date directors are to be elected” as required by the statute.
Comment was sought from LACBA as to Stevens’ rationale for not performing the duty set forth in Art. VII, §4, and Brown’s alleged representation that a bylaw change had been made authorizing the second election. A spokesperson responded:
“LACBA has been advised by counsel that we should not respond to questions that address legal issues or could compromise legal rights related to the ongoing lawsuit.”
The action, in Booth v. LACBA, has been brought by trustee candidate Susan J. Booth; Jensen, who is running for senior vice president; Lam, a candidate for vice president; Directors William L. Winslow and Edwin C. Summers III; and Past President Harry L. Hathaway. They are represented by Joel L. Goldman of Clark & Trevithick.
Meanwhile, Lindsey said yesterday it is not his present intent to become a candidate by nominating petition.
Copyright 2017, Metropolitan News Company