Tuesday, May 30, 2017
LACBA-Gate Puts Spotlight on Good Guys, Bad Guys
By ROGER M. GRACE
I remember cowboy shows on television in the early 1950s. As in western movies in the ’40s, the good guys (well, except for Hoppy) wore white hats and the bad guys sported black ones.
Then came a rash of adult westerns, starting with Gunsmoke in 1955. In those shows, there were lawmen with failings and outlaws with virtues. A cartoon appeared in a magazine (the Saturday Evening Post, if memory serves) with one little boy in cowboy attire saying to another tot, similarly clothed: “You be the good guy and I’ll be the guy with the problem.”
As color television came into vogue—and cowboys wore hats that were brown and beige as well as the traditional colors—the public, whether coincidentally or not, started thinking less in black and white terms.
Indeed, in public controversies, there’s generally something to be said in favor of both sides.
At present, a controversy is raging within the Los Angeles County Bar Association over the matter of an election.
What’s right and what’s wrong appear so clear that I cannot help but view one faction as wearing white hats and the other black hats.
While it would be difficult to visualize LACBA President Margaret Stevens with a long, curled mustache, readying to tie a damsel to a railroad track, I do see her as a villain, and her cohorts—principally, General Counsel W. Clark Brown and Treasurer Duncan Crabtree-Ireland (appointed by Stevens)—also as blackguards.
They don’t stick to the rules. They don’t play fair. They twist the facts. Connivery and chicanery are their tools.
It is to be hoped that a man in a black robe will side with the good guys.
Los Angeles Superior Court Judge James Chalfant is scheduled to hear a motion for a preliminary injunction on June 13 in Booth v. LACBA, a case brought by LACBA’s senior vice president, Philip Lam, its vice president, Tamila Jensen, two trustees, a candidate for trustee, and a past president. They want a determination, pursuant to Corporations Code §7616, that nominees of the 2017 Nominating Committee were automatically elected to the respective posts they sought as officer-trustees or non-officer trustees when no opposition arose by the 5 p.m. deadline on March 22 for filing nominating petitions.
Although §7616 says that a hearing is to be set within five days of the filing of a complaint, unless there’s cause for a delay, Chalfant on May 16, in denying a temporary restraining order, declined to set a hearing. The section says that the court “shall determine the validity of any election…of any director” (or trustee) of any nonprofit mutual benefit corporation, such as LACBA—but, he found, an election had not occurred. That’s because a bylaw requires that if nominating petitions are not filed, the president, on the day after the deadline, is to cause the CEO to cast a ballot for the Nominating Committee’s slate, bringing about an election of the slate.
Stevens had not abided by the bylaw, he found, thus preventing completion of the election.
An amended complaint seeks an order to Stevens to carry out her duty. If Chalfant issues such an order, and she complies, the election will have reached its conclusion. It may be assumed he would then set a hearing to decide whether to confirm the validity of that election, or do it on the spot. If he finds the Nominating Committee’s Feb. 27 slate was elected, it would moot a second election that has been called.
If he rules otherwise, the election will proceed. The second nominating committee renominated the Feb. 27 nominees. New nominating petitions are due June 15, and the election is to end June 30, the day before the 2017-18 terms are to begin.
Here’s the chronology of events surrounding the affair, with some new information gleaned from court papers:
Feb. 27: the LACBA Nominating Committee made its choices. At the top of the slate was Brian Kabateck, whom it backed for president-elect. The committee also nominated Jensen for senior vice president, Lam for vice president, and nine persons for nine spots on the Board of trustees (three from affiliated bars, three from sections, and three at-large).
Done! Its work was completed, and unless one engages in some sort of science-fiction theory of retrogressive time-causality, no subsequent event could have affected the validity of its actions.
Feb. 28: Stevens recounts in a declaration, attached to LACBA’s opposition to a TRO: “Following the public announcement of nominees on February 28, 2017, I received an email from Michael Lindsey, asking if the nomination process was no longer confidential. He forwarded me an email from Roger Grace asking if he planned to run for office [by nominating petition]. But Mr. Lindsey’s unsuccessful effort to be nominated had not been announced along with the committee’s nominees for officers and trustees. Subsequently, I began receiving emails and calls from people who were very concerned about the article in the Metropolitan News, and asking why there was no confidentiality this year, among other things.” Stevens says in her declaration that subsequent to Feb. 28, she saw emails from LACBA Past President John Carson, chair of the Council of Sections—which sponsored a successful slate of reform candidates in last year’s contested election—urging that Nominating Committee members be contacted and entreated to vote for Kabateck over Lindsey. (What Stevens does not mention is that Carson’s exhortation was in response to Kiesel’s lobbying for Lindsey.)
March 1: This newspaper reported: “The MetNews has learned that although Kabateck was favored by President-Elect Michael E. Meyer, who will become LACBA president on July 1, [Immediate Past President Paul] 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.”
March 3: The Los Angeles Daily Journal told of Kiesel having campaigned for the nomination of Lindsey.
March 22, 5 p.m.: No nominating petitions were on file.
March 22, 5:42 p.m.: The Board of Trustees’ monthly meeting was convened. At the end of the public session, Stevens passed out copies of the March 1 MetNews article, declared there had been a leak from the Nominating Committee which needed to be probed, introduced a lawyer whose services she had retained, declared herself to be recused, and strutted off. As Jensen recounts in a declaration, “The members of the NomCom and others were asked to recuse themselves.” My wife, a trustee, also left, upon nudging by the lawyer Stevens had brought in. The board went into executive session. A three-person task force was formed (the members of which are secret) to make a report on possible breaches of confidentiality. A Power Point presentation was made to non-recused trustees at the April 26 meeting by two pro bono attorneys who assisted the task force, but, Trustee William Winslow says in a declaration: “I did not receive a copy of the report or any other related written materials, nor, to my knowledge was a written copy of the report ever made available to Board members.”
April 26: An executive session was held, with Crabtree-Ireland presiding (Stevens, Meyer and Kiesel having been recused). Trustee Ed Summers was booted out, according to his declaration, because he had been on the Nominating Committee. My wife, Jo-Ann, though she did not serve on the Nominating Committee, was required to leave because she’s married to me and is co-publisher of this newspaper. Winslow was later pressured into exiting, as he describes in his declaration, after a copy of a brief email he sent was flashed on a screen. The email was in response to one from John Carson reporting that Kiesel was backing Lindsey. John F. Hartigan, who had phoned in, was barred from participating; he was disconnected, without advance warning that only those physically present could participate. On a 6-5 vote, with Crabtree-Ireland apparently casting a tie-breaking vote, the decision was made to nullify the election that had been held and conduct a new one.
May 18: A second nominating committee nominated the same candidates as the first one. Each nominee, who had previously been considered elected, now faces the prospect of an opponent.
Who were the 11 who were allowed to remain in the room? In addition to Crabtree-lreland, they were Sheri A. Bluebond; Harry W.R. Chamberlain II; Natasha Chesler; Rebecca A. Delfino; Kenneth C. Feldman; Annaluisa Padilla; Brad S. Pauley; Angela J. Reddock; Diana K. Rodgers; and Damon A. Thayer.
There is no doubt that all three who were ejected would have disfavored holding a new election. Winslow and Summers are plaintiffs in Booth v. LACBA, and I know what my wife’s sentiments are. Even if it made sense to recuse trustees who had been on the Nominating Committee—which is highly questionable—justification was surely lacking for barring my wife or William Winslow.
I would wager that Hartigan would have voted against holding a new election. He’s one of the bunch with the white hats.
Flashback to last year: the Nominating Committee chose candidates for nine trustee spots. All were favored by Stevens. The Council of Sections, by filing nominating petitions, put together a rival slate. It found two of the Nominating Committee’s choices wholly acceptable and included them on its slate. They were Hartigan and Marc Sallus.
It attempted to run someone against each of the other seven. However, one of its nominees was disqualified. The other—Bluebond, chief bankruptcy judge for the Central District of California—dropped out because she suddenly discovered that it would breach judicial ethics for her to be in a contested race. An attorney had stepped aside so she could run, but it was then too late for him to be substituted in, meaning that Bluebond caused one of the seats to be forfeited.
So, two of the candidates Stevens favored were elected as trustees last year for 2017-19. They are Angela J. Reddock and Diana K. Rodgers. As you see from the list above, they were among the 11 who voted.
Bluebond was appointed by Stevens as an assistant vice president, and she has been a Stevens loyalist. So is Annaluisa Padilla who lost to Jensen last year in a race for vice president by a vote of 1,180-535, and was appointed by Stevens, a buddy of hers, as an assistant vice president.
Of the 11 non-recused trustees, only one—Brad Pauley—had been elected last year with the support of the Council of Sections. Aside from Bluebond, Crabtree-lreland, Padilla, Reddock, and Rodgers, there was the Barristers president and four holdover trustees (elected in 2015, before the council was formed).
Had Grace, Hartigan, or Winslow been permitted to participate, it would have been a 6-5 vote in favor of confirming the March 22 election results, and Crabtree-Ireland, as chair, would not have been able to vote (as he apparently did, to break a tie).
Can it be doubted that the Maggie Stevens Gang pulled a fast one?
A rationalization on LACBA’s website of the election shenanigans says that at the April 26 executive session, there was a “finding that the prior process had been seriously compromised and that reconvening the process was the best way to maintain the integrity of LACBA’s selection of leadership and members of the governing Board.”
What Stevens does not explain, nor does Crabtree-Ireland—the orchestrator of, and designated apologist for, the second election—is just how the lobbying, which both the white-hat and black-hat factions engaged in, affected the election outcome or caused the “process” to be “compromised.”
Gosh, I’m sorry if Stevens and Lindsey found our March 1 article upsetting. But there is no way it could have affected the Nominating Committee’s decisions since it came out two days after the committee acted. And it could not have affected any contests for seats because there were none.
She assumes that information for the March 1 article came from a member of the Nominating Committee. That’s a possibility, but not a certainty.
In any event, even if there was a “leak” from someone on the committee, it is questionable whether disclosure of Kiesel’s lobbying for Lindsey—as opposed to revealing comments that were voiced on the strengths and shortcomings of the applicants for nomination—violated the confidentiality pledge. That pledge defines “Confidential Information” in terms of candidates’ “experience, background, and reputation among other things.”
It’s Jensen’s view that no breach occurred. She says in a declaration that at the April 26 closed-door meeting—before she and Lam were required to leave while the vote was taken—she viewed the Power Point presentation on the results of an investigation by two pro bono attorneys into the supposed leaks. Jensen says:
“Having heard and seen the results of the investigation, I can testify that there is no support for any claim that there was a violation of the 2017 Confidentiality & Nondisclosure Agreement…by anyone on the NomCom.
“…The only information developed was that some members of the NomCom had been lobbied to nominate various candidates, which is not at all prohibited by the Confidentiality Agreement.”
And even if there had been a breach, how would an indiscretion by a Nominating Committee member justify yanking entitlement to take office from the committee’s faultless Feb. 27 nominees who had drawn no opposition by the deadline set forth in the bylaws?
Leading the Council of Sections’ efforts to thwart the election hanky panky are three hombres with 10-gallon hats as white as the Lone Ranger’s stallion: former LACBA Presidents John Carson and Charles E. Michaels and Senior Lawyers Section Chair Nowland Hong.
They, the candidates they have sponsored, and the plaintiffs in the lawsuit, plainly are the “good guys.”
Copyright 2017, Metropolitan News Company