A detailed comparison of certain provisions of the VVA National Constitution regarding Chapters;
Chapter 96 Articles of Incorporation as filed 19 August 1983 and amended 28 June 1990;
Chapter 96 Bylaws as amended 11 July 1989; Chapter 96 Bylaws as purportedly adopted
19 October 2006; and Chapter 617, Florida Statutes
Revised 15 June 2007
First let me establish a general context. Vietnam Veterans of
America, Inc. (hereinafter referred to as VVA) is first and foremost a NATIONAL veterans organization in the United States of
America. As a National organization VVA is incorporated in the state of New York
and is also chartered by the United States Congress as a veterans service
organization.
Here is what the VVA National Constitution has to say about the
"force" of various documentary authorities at the National level
upon every VVA member, in Section III A.:
Membership in the corporation is open to any veteran
of the military service of the United States of America, who served on
active duty during the dates established by federal law for the Vietnam
War, paying in advance annual dues set by the Board of Directors, and
conforming to, and complying with, this Constitution, bylaws, and rules
of the Corporation now or hereinafter in effect. The Board of
Directors shall have the right to set rules for waiver of dues in
situations it deems appropriate. Members shall file with their
Chapter, or with the Corporation, if they are not affiliated with a
Chapter, a DD Form 214, or other proof of qualification for membership.
Vietnam Veterans of America Big Bend Chapter 96, Inc. (hereinafter
referred to as VVA Chapter 96 or Chapter 96) is just one of many tiny local chapters
within that
NATIONAL organization, and it is SUBORDINATE IN ALL RESPECTS
besides to the laws of the state
of Florida in which the Chapter is incorporated, to the bylaws of the
VVA Florida State Council, to the Florida Articles of Incorporation of
Chapter 96, and to ALL REQUIREMENTS OF VVA NATIONAL.
Every VVA officer, director, and committee chair at
Chapter level is required to swear or affirm to the following oath
which is contained in Appendix III of the VVA National Constitution,
and is in fact the very last provision of the VVA National Constitution:
Oath of Office for officers, directors, and committee chairs of Vietnam Veterans of America, Inc., chapters.
I do solemnly swear (or affirm) that I, _________(state your
name), will faithfully execute the office of ________(state your
office, directorship, or committee chair) of the Vietnam Veterans of
America, Inc., Chapter_________ and will, to the best of my ability,
preserve, protect, and defend the Constitution of the United States of
America and the Constitution of Vietnam Veterans of America, Inc., the
by-laws of the ___________State Council, and the by-laws of Chapter______.
I was not there when it happened so I cannot testify that the
Chapter 96 board took this oath, but unless that oath was administered
no VVA chapter officer, director is a legitimately serving leader of
any Chapter of Vietnam Veterans of America. Notice how the oath
sorts through a hierarchy of levels of authority in descending order
of force... at the very top the Constitution of the United States of
America, then the National Constitution of VVA , then the bylaws of the
(in this case Florida) State Council, and finally at the lowest
level... the bylaws of the Chapter, in this case Chapter 96.
There is no conflict among these levels of authority, or at least none
that isn't reconciled by the fact that the higher level of authority
always prevails.
Now that the stage has been set, here's what I'm talking about as to
the "details" of the bylaws comparison, in 3 specific "subject" areas,
as follows:
SUBJECT # 1: Quorum at Membership Meetings
WORDING OF VVA NATIONAL CONSTITUTION: Article III, Section 3 F
Each chapter shall define their quorum as required by state or local law.
Wording of Section 617.0601, Florida Statutes: Members, generally.--
(1)(a) A corporation may have one or more classes of members or
may have no members. If the corporation has one or more classes of
members, the designation of such class or classes, the qualifications
and rights of the members of each class, any quorum and voting
requirements for meetings and activities of the members, and notice
requirements sufficient to provide notice of meetings and activities of
the members must be set forth in the articles of incorporation or in
the bylaws.
Wording of Chapter VVA 96 articles of Incorporation, Article IV:
However, there have been many amendments of Chapter 617 Florida
Statutes since Chapter 96 was incorporated in 1983, and the following
was the quorum requirement as expressed in the Chapter 96 Bylaws as
amended on 11 July 1989... the bylaws member quorum requirement in
effect from then till 19 October 2006:
Wording of the VVA Chapter 96 Bylaws as amended 11 July 1989:
Article IV, Section
6. Quorum. The presence in person of 10 percent,
in person, of the members entitled to vote at any meeting
shall constitute a quorum for the transaction of any business,
provided, however, that the presence in person of 25 percent
of the members entitled to vote at an annual meeting shall
constitute a quorum for the transaction of any business at said
annual meeting. The State Council may
modify such quorum requirements
in the event that the members of the Chapter requesting
such modification are regularly unable to attend meetings
because of incarceration.
Wording of "New" VVA Chapter 96 Bylaws purportedly adopted 19 October 2006:
In case you you are not clear as to the meaning,
this is as to MEMBERS... NO QUORUM REQUIREMENT AT ALL, rather a
statement that a vote by 50% of those present at a membership meeting,
no matter how few, is sufficient to carry. In other words, if two
people are present, and one of them votes in favor of "something" and
the other votes against it, that "something" would carry and become the
expressed will of the members of VVA Chapter 96. Please note that
in such a situation a decision would have been made by less than a
simple majority of the members present, and that members present would
have been less than 2% of the Chapter 96 membership as of May 2007.
Also, since this was a reduction of the quorum requirement of the bylaws as they existed at that time, the following applies:
Wording of Section 617.0725, Florida Statutes
Quorum.--An amendment to the articles of incorporation
or the bylaws that changes or deletes a greater quorum or voting
requirement must meet the same quorum or voting requirement and be
adopted by the same vote and voting groups required to take action
under the quorum and voting requirements prescribed in the provision
being amended.
MY COMMENTARY: To have been a properly approved amendment all
Chapter 96 members would have to have been notified of the meeting of
19 October 2006 10 days in advance as specified by the 1989 Chapter 96
bylaws AND probably 7 members would have constituted a proper
quorum. I have previously stated to the board that the quorum
would have been considerably more... and I was mistaken about that;
however as best I can tell, members were selectively notified of that
meeting. There is a record that strongly suggests only 24 notices
of the meeting and impending bylaws vote were mailed... and that the notice was
mailed less than the 10 days in advance required by the 1989
bylaws. I was eventually able to obtain minutes of the meeting
but they do not show who was present and I have been told by the VVA
Chapter 96 Secretary that the whereabouts of the member sign-up sheet
for the meeting is unknown. The minutes of the meeting of 19 October 2006 state that there was a
quorum present and voting; however, since the board also avers that it
had no idea that the Chapter had any bylaws, it was also apparently
ignorant of the quorum existing requirement and without member and
board attendance sign-up sheets for that meeting, that simple statement is
absolutely devoid of significance. Those minutes do not even identify
the body that met and purportedly approved the "new" bylaws, as to
whether it was at a meeting of the board or membership.
SUBJECT # 2: Quorum at Board Meetings
WORDING OF VVA NATIONAL CONSTITUTION: Article III, Section 5 H
A quorum of the Board of Directors shall be two-thirds of the whole
number of the Board of Directors, or that number greater than
two-thirds which is closest thereto when the number of the Directors is
not divisible by three. The act of the majority of the Directors
present at any duly constituted meeting at which there is a quorum
present, shall be the act of the Board of Directors, except as
otherwise provided by law, this Constitution, or the rules, procedures,
or directives of the Corporation.
Wording of Section 617.0824(3), Florida Statutes, Quorum and voting.--
If a quorum is
present when a vote is taken, the affirmative vote of a majority of
directors present is the act of the board of directors unless the
articles of incorporation or the bylaws require the vote of a greater
number of directors.
Wording of the VVA Chapter 96 Bylaws as amended 11 July 1989:
Article V, Section
6. Quorum and Voting. A quorum of the Board of Directors
shall be two-thirds of the whole number of the Board of Directors
or that number greater than two-thirds which is closest to
two-thirds when the number of Directors is not divisible by three. The act of a majority of the Directors
present at any duly
constituted meeting at which there is a quorum present shall
be the
act of the Board of Directors, except as otherwise provided
by law; by the VVA Constitution, rules, procedures, or
directives;
or by these By-Laws.
Wording of "New" VVA Chapter 96 Bylaws purportedly adopted 19 October 2006:
MY COMMENTARY: The language used here is
ambiguous as to what "current" means, but can be construed as an actual
quorum requirement of some kind and falling within allowable standards
of the Florida Statutes. Again, however, in some situations, this
wording would also allow directors voting in the affirmative on a
motion to carry a decision on a tied vote. This "winning" with
less than a majority vote is clearly both a lower standard than is
allowed by the Florida Statutes, and also may represent lowering of a
quorum without that quorum being present to vote, which would be a
violation of Section 617.0725, Florida Statutes as previously
discussed in Subject # 1, regarding the membership quorum. In any
case, however, this bylaw was written with BLATANT disregard to the
requirements of the VVA National Constitution. The
minutes of the meeting of 19 October 2006 state that there was a quorum
present and voting on the "new" bylaws; however, since the board also
avers that it had no
idea that the Chapter had any bylaws, it was also apparently ignorant
of the existing quorum requirement and without member and board
attendance sign-up sheets for that meeting, that statement is
absolutely devoid of significance. Those minutes do not even
identify the body that met and purportedly approved the "new" bylaws,
as to whether it was done at a meeting of the board or of the
membership.
SUBJECT # 3: Annual Elections
WORDING OF VVA NATIONAL CONSTITUTION: Article III, Section 4 B
The annual meeting of the members of the Chapter, held after December
31, 1986, shall be held in April of each year on a day and at a time
and place to be determined by the Board of Directors of the Chapter for
the purpose of electing Officers, each for a one-(1) or two-(2)-year
term as determined by the Chapter; Nominating Committee members, each
for a one-(1), or two-(2)-year term as determined by the Chapter;
Directors, each for a one -(1), two-(2), or three-(3) year term as
determined by the Chapter; State Council delegates, who shall be
elected for a term of two (2) years at the annual meeting occurring in
each even-numbered year; and for the transaction of such other business
as may properly come before the meeting.
Wording of "New" VVA Chapter 96 Bylaws purportedly adopted 19 October 2006:
MY COMMENTARY: Please note that this purported bylaw is
a "two for the price of one" violation of the requirements of the VVA
National Constitution. It sets the Chapter 96 annual meeting in February
instead of in April, AND it also turns a position that is doubly
elected under the VVA National Constitution, the Nominating Committee
chairship (same thing as an Election Committee chairship, and
required by the Constitution first to be elected by the membership at
the annual meeting as a Nominating Committee member, and then secondly
to be elected by the Committee as its chair) into a ex-officio old
folks home for the immediate past president.
CONCLUDING STATEMENT: My guess is that many of you
got a
glazed look in your eyes and were lucky not to doze off in following
through the complexity of just these three subject areas. Bylaws are mind-numbing,
and people who are deeply interested in them are few and far in
between. The purported "new" bylaws are 8 pages long. All
three of the "examples" given above are from page 5, and I chose them
because they are both representative of the general sort of FATAL
ERRORS and inconsistencies made in composing the purported "new"
Chapter 96 bylaws, and because I consider these to be some of the most
important of such errors and inconsistencies... the most important
because they so obviously diminish the authority and rights of the
membership in the Chapter... except that really, they don't. The
purported "new" bylaws are FILLED with such problems. These three
are nowhere near they sum or totality of such problems. They are
JUST examples! But the underlying reality is that in a NATIONAL
VETERANS ORGANIZATION no Chapter board can actually do such things to
the Chapter, even if the members approved their doing them... which I
don't believe for a single minute to have actually,
legitimately, happened. What this sort of "outlaw" bylaws can do, and do quite
easily, though, is get every officer and director involved in composing
them and promoting them, and possibly every director and member who
voted for them, PLUS the ENTIRETY OF CHAPTER 96 lined up to be SUSPENDED by the VVA
State Council, Regional Director, or National President, and could even
ultimately result in the individuals most involved being EXPELLED from
VVA entirely, and/or Chapter 96 being permanently closed down.
Because their actions involve numerous violations of the VVA
National Constitution and the oath of office of the officers and
directors involved as well what I consider to have been "failure to act with the care an ordinarily
prudent person in a like position would exercise under similar
circumstances" I could have proceeded directly towards filing charges against the specific directors centrally involved
in the outrageously irresponsible behavior shown in the drafting and
adoption of these purported "new" bylaws, or even to filing a lawsuit; however I did not do so for
several reasons. First, I chose to go directly to those who had
screwed this up, explain the problems, and ask them to correct the
situation themselves. The result of this is that I now stand as
the only member of Chapter 96 ever, to my knowledge, to have been
charged by the board of directors with anything. In other words,
they attacked the messenger like a pack of rabid dogs. They did
so on another subject, mind you... but I have little doubt but what it was a spoiling attack
attempting to dislodge me from this, not to mention damage my reputation. How little do they know
me...
Their skills displayed in pressing that nasty and completely
unfounded charge against me was similar to the
skills displayed in drafting the "new" bylaws in 2006... which is to
say virtually
nonexistent, and in fact so poorly was that done that with regard to
the established VVA Code of Disciplinary Policy and Procedures,
effectively
no
charge has actually been made against me. Although there is a
section of the Chapter 96 bylaws as amended in 1989, that provides for
discipline of Chapter 96 members by the Chapter 96 board, the
effectiveness of that section was long ago superseded by the VVA Code
of Disciplinary Policy and Procedures which did not exist yet in
1989. The Code of Disciplinary Policy and Procedures as is
it is posted online at
http://www.vva.org/OrgDocs/10-2005DisciplinaryPolicy.pdf bears dates
going back to only 2001, but from my memory I am fairly certain that at
least to some degree the practices that have gone into the present Code
were being placed into effect as early as the early 1990s.
However, even that was later than 1989 when the Chapter 96 bylaws were
last amended. In 1989 I crafted and the membership approved an
entirely new article, "Article XIII - PRECEDENCE," which made it
crystal clear that (from then onwards) ANY FUTURE amendment of the VVA
National Constitution that conflicted with any existing Chapter 96
bylaw immediately superseded and made moot the conflicting Chapter 96
bylaw. This is a clear case of just exactly hat having since
occurred, having been brought about by the inevitable onward course of
VVA's organizational history. Indeed, the VVA National
Constitution was long ago amended to reference the binding effect of
the Code of Disciplinary Policy and Procedures at all subordinate
levels. But just like when they crafted and adopted the "new"
bylaws, no serious attempt was made by the board members involved to
put what they were doing into a proper context within the overall VVA
organizational scheme, and the board again BLUNDERED, badly.
Instead of properly
placing the charge, which in and of itself was improperly made, into
the standing VVA disciplinary system, the Chapter board again exceeded
its authority and both moved and voted to "suspend" me, which they no
longer have
any authority whatsoever to do AND set up an ad hoc "kangaroo
court" committee of Chapter 96 members, then referred the matter to
that committee, all three of which actions are entirely improper
because they are
contrary to specific provisions of the now governing VVA Code of
Disciplinary Policy
and Procedures. In fumbling and fizzling at
making that
charge that they tried to make, however, five of Chapter 96's directors
did pretty much make jackasses of themselves, and in my humble
(layman's)
opinion one of
them may have both "mis-spoke" under oath in several different
ways
in a sworn and
notarized statement AND by the unfounded content of the charge put
himself wide open to a lawsuit by me for
libel and defamation of character. An
officer of Chapter swore on oath that he was charging me on behalf of
the board of directors, he did so two days before the board of
directors even met and in any way officially discussed the matter, AND
when the board did meet they NEVER moved, discussed, or voted to make
charges... rather solely to "suspend" me. What action I take
next will
be much affected by how that officer and his five associates next
act. A sworn and
notarized
written
retraction of the charge and apology might take care of that
particular matter... so far as I am concerned; however I do point out
that I have no
control over what the State Council President might decide to be a
proper course of action in such a situation. And, beyond that
there is, still, a whole laundry list of
inappropriate actions and inactions on the part of these five directors
plus one other (a total of six) acting in concert. The
membership needs to rise up en masse and resoundingly VOTE
ALL SIX THEM OUT OF
OFFICE on June 21st. After that, there still may be charges to be
pursued against some of them. If they or some of them continue to
pursue
their outrageous
patterns of conduct, there may be no alternative to pursuing
charges. Time only will tell. My main concern is for the
appearance of integrity and reputation of Chapter 96 in the community,
and some of these officers and board members'
actions outside of these bylaws issues have already badly damaged
those. However, I also have concern for
the personal reputations of these six members of Chapter 96 in the
community that is about 180 degrees
away from the way that they have mistreated me personally, and unlike
them I will not rashly pursue disciplinary charges nor do I care to
unnecessarily chastise them. Yet if further "shenanigans" ensue
and I feel that I must... pursuing charges is an option still available
to me, or for that matter, to any member of
Chapter 96. These six have, in my opinion, to some degree or
another, wronged us all!
As to the notice of the special meeting to retract the purported "new"
bylaws... In my opinion, those bylaws put Chapter 96 in peril of
suspension or possibly even revocation of our VVA charter. I
recommend that the motion to be made in their
regard is that they were NEVER anything more than "purported"... that
the bylaws adopted in 1989 (as since affected by amendments of the VVA
National Constitution) have been the only effective bylaws of
Chapter 96 since 1989, and that they continue to be our bylaws until
such
time as PROPERLY amended by the members of Chapter 96.
Further, Chapter 96 has in fact shriveled down in its usefulness and
service to the community and nation, to less than a role of bit
player. For over a decade now it has mainly been operated at a
very low level of energy by a "caretaker" board. It has continued
to be able to strike a few small blows for Vietnam veterans and other
veterans in the local area (which is truly an enormous area since the
nearest VVA Chapters in Florida are at least 100, but in fact as I
understand it all actually over 200 miles away from Tallahassee).
While we are at straightening out this gawd-awful mess of bylaws
confusion and failure of leadership, here in this time when our nation
is again at war, we must also "Take it to the Limit, One More Time." VVA Chapter 96 needs and deserves
a rebirth as an effective local Chapter of a National veterans
organization, designed and intended as "a place in the sun" where
veterans can work together to help their fellow veterans. In
trying to bring about this rebirth, though, I personally call that we
must "leave no man behind." I only ask that our errant
leaders, in spite of their sins, be electorally removed from
office. I would like very much, in spite of the miserable
treatment that they have accorded me, to see them remain members of the
Chapter, and perhaps even again at some time in the future, after a
suitable period of "attitude adjustment and reeducation" return to
leadership roles, if they choose to do so. I would like very much
for there to be no practical need to pursue charges against any of
them... in which case no charges will be pursued, at least not by
me. As I've already noted, though, they have wronged the entire
Chapter... so any member could pursue charges against them through the
VVA Code of Disciplinary Policy and Procedures should he or she feels
called upon to do so.
Who are the directors who need to not be elected or re-elected?
In alphabetical order, they are: Gerald Floyd, Charles Patterson, Mike
Seagraves, Don Tobin, Robert Van Alstine, and, unfortunately and I
really hate to say this after his many years of loyal service to
Chapter 96, but also Mike Whiddon who seemed among other things, to
have particularly delighted in thundering against me and tooting his
own horn at the same time.
Current Chapter 96 president John Petriellio has done yeoman work in
attempting to navigate a true course through this awful mess and right
the condition of Chapter 96. He has told me that he does not wish
re-election, but will accept nomination as an "at-large" director of
the Chapter. That he fully deserves. Rick Clevenger and Ken Ganey have also stood solidly
in the corner of the true interest of Chapter 96 and of all of its
members, and they also deserve return to office. Beyond that I
have difficulty in saying who we should elect.
I am by far more personally concerned and interested in assuring the
return of the Free Fire Wire or some similar, effective Chapter 96 news
organ with at least a world wide web presence, and perhaps to some
extent a hard copy circulation through the U.S. Mail, than I am in
assuming any office. I have considered and am still am
considering accepting a nomination either to the office of Chapter 96
Secretary, President, and/or possibly also State Council Delegate, and
Constitution Committee. I have made no decision and will have
difficulty ever making a decision, and had just as soon the members do
that for me. I just want to warn, however, that I now am and have
been since about 1998, 100% service-connected disabled. I hope
that my abstract reasoning capabilities are about as good as ever,
however my body is steadily going to hell in slow motion and besides
service connection for three separate physically disabling conditions,
I have also been found to be 100% disabled by PTSD (under the criteria
of the old DSM III, which are less rigorous than those of the current
DSM IV). This current campaign to restore Chapter 96 in itself
has been a big drain on me. I'm not sure how well I can continue
under a steady diet of pressure. I had to take about a week off
from this right at the peak, because I was getting to a point where I
was neither sleeping nor eating and if I tried to sit at a keyboard and
write... I passed out like a light. But, if I got up from the
chair, lay down, and tried to sleep... I could lay for hours wide
awake, not sleeping an instant. There is a limit on how long I
can proceed in that manner, to one extent or another it's about the only manner I have of
proceeding, and it might be in the best interest of the membership to
just leave me working on a Chapter newsletter, and nothing else.
I will accept whatever the members decide in that regard, and will do
my best at it as long as I can.
Beyond that, Robert Flanagan has said that he is available, and I
support his nomination either as Chapter treasurer or as an at-large
director. Boe Boeve has been very concerned about the situation
with the Hootch lease expiring on 1 September 2007 (barely 2 months
after the Chapter 96 annual meeting), but is able to serve only at a
committee level due to family commitments. Beyond that, Chapter
96's members need to find additional candidates on their own, for
offices in total including all officers and directors, three members of
the standing Nominating Committee, and MAYBE two State Council
delegates. The situation with State Council delegates is a
"tricky" one due to there being incumbents in office who are also
currently sitting Chapter 96 board officers who need to be voted out as
board officers, but their separate offices as State Council Delegate
have two year terms, and they are mid-term in those. Given that
after over a year in office they have demonstrated no understanding at
all of what State Council does that I can see, I believe that they
should be removed from those offices if they do not voluntarily resign
them... but I cannot at this moment deal with guiding a removal
procedure for those offices. I can only say that failure of the
incumbents to resign them may lead to pursuing
charges related to those offices, so it would be in the best interest
of the incumbents and of Chapter 96 for them to resign those offices in
writing before the annual meeting so they too can be filled in conjunction
with the Chapter 96 annual meeting and election.
Richard White ( e-mail address camlo@anhaica.org )
VVA Life Member # 61
15 June 2007 (this version supersedes drafts dated 14 June)