Constitutional Crisis?
Conclusion & Introduction
I spent many years in APLS leadership, giving up “family and fun time” in the process.
Any person that VOLUNTEERS in the APLS organization should be commended. A sincere thank you is extended to those people that give their time and effort.
That many people choose to work extra time for a perceived
good of their profession does not automatically elevate the Association to that same high praise. The organization is bound by rules,
conduct, and procedures. Misinformation, misinterpretation, and human error are all fair reasons
for operative errors.
For as long as good faith prevails
and intents are pure then an understanding of the process is possible.
I sincerely
believe the overwhelming desire of the APLS leadership is well intended. I also sincerely
believe they are also a bit misguided.
Four or five years ago I dropped
out of APLS for many reasons.
Some of my reasons are reflected
in what I have discussed in this analysis. Contradicting or inaccurate website data coupled
with administrative lethargy, website violation of Bylaws,
and certainly the constitutional issue(s) highlighted herein have greatly
influenced my professional decision to not belong
to what once was a great organization. Add my observation of other devoted
surveyors that have left APLS in recent years due to “political” differences with the mission of APLS, and I drift further away. Add to that my
knowledge when these new bylaws were passed at least one Director
thought the process was a bit foiled,
or shady, and
I drift even further away. Add to all of that a
bit of criticism by SALSA as to the direction
APLS is pointed, the APLS leadership retaliates with little understanding, and I drift way farther
away.
I am retired from the City
of Tucson. I am not currently
working as a Professional Land Surveyor in Arizona. I do not have any plans to return
to surveying. I am happily building a new business
with my wife. So why am I sticking the pig here?
I am doing this
because I can. I am doing this because I should. I have the knowledge and talent
to analyze such legal mumbo-jumbo as the APLS Bylaws. And, in spite of being lectured
as being unprofessional by the APLS leadership I am doing this
because I care for my profession. Many surveyors
may not see their blind following of a cheerful flute, but I do because
I am not listening
to the Piper.
As far as I am concerned my efforts
are the most professional because they are based in fact.
Take that with a grain of salt.
I am presenting facts and straight up language
right from the APLS Bylaws
and website. Since I have not been a cook in the kitchen
for a few years, and since
I have no stake in my obstructionist position, and since I am qualified to undertake this analysis, I offer the following opinion paper regarding the current
state of APLS affairs.
Because I am an outsider I can see things in a different
light. Please
read the entire paper, if you can do so without falling
to the temptation of arguing points as presented. In the end
you will see I have considered all sides. Once you have mustered the strength to read all of this, and think about my observations without emotional investment, I sincerely
believe you will see why I am a Freebooter.
Director and Officer data discussed herein is from the year 2013.
APLS Bylaws
The bylaws posted on the APLS website
are advertised as those passed
in 2012, therefore are hereby used as the current operative bylaws for this discussion.
The bylaws are broken into the following sections:
–
Article 1: Offices
–
Article 2: Objectives
–
Article 3: Membership
–
Article 4: Meeting
of Members
–
Article 5: Directors
–
Article 6: Board Officers
–
Article 7: Miscellaneous
–
Article 8: Chapters
This discussion will focus on two articles,
“Directors” and “Board Officers” as they relate to the current operational scheme of the APLS Board of Directors.
Readers are encouraged to read the bylaws
in their entirety
to see this analysis
does not miss any obscure
rules in the other articles nor miss anything within these two. To analyze
and understand this discussion a series of
questions are presented with answers directly from the bylaws.
1.
What exactly is the APLS “Board of Directors?”
According to Article 5, Sections
5.01 & 5.02 the “Board of Directors” is operationally created as follows:
SECTION 5.01 Board of Directors
• The Association shall be managed
by a Board of Directors, referred to herein as the Board. Each Director shall have one vote on matters
considered by the Board.
SECTION 5.02 Selection
of Directors
• Each Chapter
of this Association as herein defined shall elect or appoint
One Professional Member to serve on the Board as Directors. No Director
so elected or appointed
shall be permitted
to vote on matters
considered by the Board without
first providing the Chairman of the Board with a writing signed by a Chapter
Officer and certifying to the Director’s
election or appointment by the Chapter.
The remaining sections in Article 5 discuss
terms, meetings, duties, quorum, compensation, et.al. The only 'legislative authority' for APLS Directors in the bylaws lies within these two sections. Please note that there may be some arguments presented that will suggest
Article 6, Section
6.01 (Election of Board Officers) allows for an expanded
Board from these two sections.
Any such arguments
are not legitimate, or legal within the structure
of the bylaws.
Article 6, “Board Officers” will be discussed
later in item number 7.
Simply put, APLS (the Association) “shall be managed
by a Board of Directors.” (Section 5.01). Furthermore, “EachChapter...shall elect or appoint OneProfessionalMember to serve on the Board as Directors.” (Section 5.02). Underlines added for emphasis.
Therefore, it is affirmed that APLS is governed
by a Board of Directors that represent
ONE VOTE for each legitimate chartered chapter.
2.
How many Directors
are on the Board?
As discussed above, each chapter is allowed ONE director to sit on the Board. In the early 1990's, as President of APLS, I initiated a change of bylaws from a “representative” structure that was based on how many members a
chapter had to the “senatorial” system whereby each chapter had TWO representatives. This change substantially increased state wide participation of the lesser populated
chapters by downsizing the voice of the Central
chapter (Phoenix metropolitain area). The two senators were downgraded to ONE person (Director) from each chapter
in the 2012 revisions.
APLS has NINE (9) chartered
chapters; Saguaro, Southeast, Northern, Geospatial, Verde Valley, Yavapai, White Mountain,
Mohave, and Central.
Therefore, the APLS Board is comprised
of no more than NINE (9) Directors. Please note that there can be “no more”
than nine. There can be
fewer than nine if a chapter
fails to abide by the criteria
in Section 5.02 that states the manner for authorizing a Director
(discussed next).
3.
What criteria
must be met for a Chapter to have a voting
member present on the APLS Board?
Section 5.02 states “No Director so elected or appointed
shall be permitted
to vote on matters
considered by the Board without first providing the Chairman
of the Board with a writing
signed by a Chapter Officer
and certifying to the Director’s election or appointment by the Chapter.”
Therefore, AFTER a Chapter
determines their Director, the Chapter's
Director “shall”
be permitted
to vote on “matters
considered by the Board” ONLY AFTER theChapterprovidesthe APLS“Chairman of the Board” with “signed” writingfroma“Chapter Officer” thatcertifiesthe “election
or appointment by the Chapter.”
In legal terms this called “jurisdictional authority”.
4. What are the criteria for Alternate
Directors in the event a Chapter
Director will be absent
from a Board meeting?
Section 5.04 defines
the criteria for a substitute of the Chapter
Director to vote at a APLS Board meeting.
Summarily, the same process
must be followed
for an “Alternate Director” as for the primary Chapter Director.
Therefore, The alternate must be “elected
or appointed” in accordance with the Chapter's
bylaws. The
Chapter must provide letter signed by a Chapter Officer to the APLS Chairman. And, the Alternate
may “only vote on matters...in the absence of the Chapter
Primary.” This section
prevents any one Chapter from having
more than ONE vote.
5. What is a quorum?
Section 5.06 defines
a quorum as “A simple majority of the number
of Board Members authorized by these Bylaws...except as otherwise provided in these Bylaws.”
The ONLY exception to this simple majority rule
can be found in the same section
5.06. The later part of that section states
that if a quorum was “initially present” and one or more members withdraws, the Board may continue to
transact business “if at least four directors
are present, at least one of whom is the Chairman,
the Vice Chairman, or the Secretary and any action taken is approved by at least a majority
of the required quorum for such meeting.”
Therefore, a simply
majority of Directors must be present
to conduct business.
Since there are NINE chapters,
there must be FIVE (5) Directors present. If ONE (1) Director
leaves the Board meeting, the Board may continue
business so long as there are
FOUR (4) Directors
remaining. One of those remaining Directors MUST be the Chairman, OR Vice Chairman, OR the Secretary. Please note that the Chairman, albeit a Director of a Chapter, may NOT cast a vote during the course of a regular vote. This limitation is discussed next (Section 6.02).
6.
The APLS Board Chairman cannot vote, right?
The APLS Board Chairman CANNOT vote as a standard
rule of thumb.
Section 6.02 states “The Chairman shall not vote during Board meetings except when necessary to decide a tie vote.” This may seem unfair to the Chapter
the Chairman represents, but that is the price of authority.
Therefore, as a matter of simple math, the APLS Board has NINE Directors. ONE Director is the Chairman who also represents
a Chapter. The effective
voting structure allowed is EIGHT Directors. If, and
only if the vote is tied
at Four to
Four (4-4) “shall”
the Chairman cast a ballot to break the
tie.
7.
What are the “Board Officers”?
Section 6.01 discusses
the “Election of Board Officers”. This section states in part “The Board of Directors shall elect the following Officers a Chairman,
a Vice-Chairman, a Secretary, and a Treasurer. These officers shall serve a two-year
term.”
This bylaw
is clear. The Board decides whom can fill the positions
of Chairman, Vice Chairman, Secretary, and Treasurer. These “Officers” MUST be elected
from the assembled
“Board of Directors” being the pool of NINE Directors, ONE from each Chapter.
Some may argue that the Board Officers can be people other than those from the pool of NINE Chapter Directors. That thought process does not, and cannot be true. There are several
operative stitches in play with the Bylaws
that affirm this truth.
a.
Article 5 (Section
5.01) clearly defines
that the Board consists of ONE Director from EACH Chapter.
b. Article
5 (Section 5.03) defines a “term” as “two years”.
c.
Article 5 (Section
5.06) discusses a “Quorum”. In this section
the discussion provides
for an exception to the “simple majority”. By stating
the Chairman, Vice Chairman,
or Secretary must remain at a meeting that drops to FOUR Directors, the ONLY conclusion
can be that these “Officers” are in fact Directors each from a particular Chapter. If that were not the case they could not vote due to Section 5.01. In this
case there are no operative words suggesting a different
conclusion. And, to interpret
the meaning of “Board Officers” as just any APLS member being appointed
by the Board would circumvent the structure of the Board itself
by giving NON ELECTED, NON APPOINTED members the right to cast votes in a staked manner in certain instances.
d. The “Past Chairman
(Section 6.02)
is authorized to serve a “one-year” term as a
“nonvoting advisor” to the Board.
Therefore, any law, rule, or bylaw must be interpreted in a way that works within the language
in the document. Assumptions and speculative meanings in absence of clear words to the contrary must be discounted. In the context of the APLS Bylaws the FOUR Officers must be elected from
the pool of possible
NINE independent Chapter Directors.
======================================================================
Legal Structure - APLS
This next section shows evidence of the legal, statutory, and regulatory compliance of APLS.
First, the Arizona Corporation Commission (ACC) website
was queried for the official
State of Arizona information currently
being displayed as of Nov. 29, 2013. From the ACC website,
the following information was copied:
Corporate
Inquiry File Number:
0513344-2
Corp. Name: ARIZONA
PROFESSIONAL LAND SURVEYORS,
INC.
Domestic Address
3346 E MENADOTA DR PHOENIX, AZ 85050
Statutory Agent Information Agent Name: JAMES R CRISTEA Agent Mailing/Physical Address: 3346 E MENADOTA
DRIVE PHOENIX, AZ 85050
Agent Status APPOINTED 03/28/1995 Agent Last Updated: 10/17/2006
Additional Corporate Information Corporation Type: NON-PROFIT Incorporation Date: 07/17/1985 Domicile: ARIZONA
Approval Date: 07/17/1985
Business Type: PROFESSIONAL, COMMERCIAL, INDUSTRIAL, OR TRADE
Corporate Life Period: PERPETUAL County:
MARICOPA
Original Publish Date: 10/24/1985
DAN MUTH
CHIEF EXECUTIVE OFFICER SPRINGERVILLE,AZ 85938
Date of Taking Office:
10/16/2007 Last Updated: 05/17/2013
WAYNE GRIFFIN
SECRETARY KINGMAN,AZ 86409
Date of Taking Office:
10/16/2007 Last Updated: 05/17/2013
DAVID SHANE TREASURER PHOENIX,AZ 85020
Date of Taking Office:
10/16/2007 Last Updated: 05/17/2013
STAN DICKEY VICE-PRESIDENT
CAMP VERDE,AZ 86322
Date of Taking Office:
10/16/2007 Last Updated: 05/17/2013
Officer Information
MARILYN WEISSMAN DIRECTOR FLAGSTAFF,AZ 86001
Date of Taking Office:
01/01/2013 Last Updated: 05/17/2013
MIKE FONDREN DIRECTOR PHOENIX,AZ 85016
Date of Taking Office:
01/01/2013 Last Updated: 05/17/2013
SKIP POMEROY DIRECTOR TUCSON,AZ 85726
Date of Taking Office:
01/01/2013 Last Updated: 05/17/2013
DALE MATTINGLY DIRECTOR PEORIA,AZ 85338
Date of Taking Office:
01/01/2012 Last Updated: 05/17/2013
JAMES FOLKER DIRECTOR FLAGSTAFF,AZ 86001
Date of Taking Office:
01/01/2012 Last Updated: 05/17/2013
TOM HOMAN DIRECTOR GLOBE,AZ 85501
Date of Taking Office:
01/01/2012 Last Updated: 05/17/2013
STEPHEN JAMES DIRECTOR SPRINGERVILLE,AZ 85938
Date of Taking Office:
01/01/2011 Last Updated: 05/17/2013
Director Information
DOUG SCHNEIDER DIRECTOR TUCSON,AZ 85712
Date of Taking Office:
01/01/2009 Last Updated: 05/17/2013
WAYNE GRIFFIN DIRECTOR KINGMAN,AZ 86409
Date of Taking Office:
01/01/2009 Last Updated: 05/17/2013
CHARLES L DOWDELL DIRECTOR
HUAHUCA CITY,AZ 85616
Date of Taking Office:
01/01/2007 Last Updated: 05/17/2013
DAVID STRATTON DIRECTOR SAFFORD,AZ 85546
Date of Taking Office:
01/01/2007 Last Updated: 05/17/2013
STAN DICKEY DIRECTOR COTTONWOOD,AZ 86326
Date of Taking Office:
01/01/2007 Last Updated: 05/17/2013
DANIEL MUTH DIRECTOR SPRINGVILLE,AZ 85938
Date of Taking Office:
01/01/2007 Last Updated: 05/17/2013
JASON FOOSE DIRECTOR KINGMAN,AZ 86401
Date of Taking Office:
01/01/2007 Last Updated: 05/17/2013
JAMES CROWLEY DIRECTOR SEDONA,AZ 86340
Date of Taking Office:
01/01/2007 Last Updated: 05/17/2013
After viewing the “official” APLS corporate information one can see who has legally been listed as the APLS “Board Officers” (see Article 6 of the Bylaws) and who has legally
been listed as Directors(see Article 5 of the Bylaws).
Please
note that reference
is made to “see” the Bylaws as opposed to saying “in accordance with” the Bylaws.
It is my firm belief that the statutory
listing of the APLS Board Officer
and Directors above are not be in compliance with the Bylaws.
As previously discussed the legal analysis as to how the Directors may be assigned as such, and the subsequent determination of the Board Officers
appears questionable when the list of statutory Officers are compared to the list of statutory
Directors. Here is how there is violation
of the Bylaws.
First one has to acknowledge the Bylaws clearly
state that there is to be one representative from each chapter
as a primary
Director. Each chapter is then allowed one alternate
Director. The statutory agents listed as Directors
are as follows:
Marilyn Weissman (Flagstaff) Mike Fondren (Phoenix)
Skip Pomeroy (Tucson) Dale Mattingly
(Peoria)
James
Folker (Flagstaff) Tom Homan (Globe)
Stephen
James (Springerville) Doug Schneider (Tucson)
Wayne Griffin (Kingman) Charles Dowdell (Huahuca City)
David
Stratton (Safford) Stan Dickey (Cottonwood)
Daniel Muth (Springville) Jason Foose (Kingman) James Crowley
(Sedona)
The first thing that comes to mind is the number of Directors. Normally one would expect to see either NINE names (since
there are NINE chartered
chapters in APLS), or EIGHTEEN
(18) names as there might be listed
NINE “Alternates” as well as the NINE “primary”
Directors. However, it would not be unreasonable to see some number between Nine and Eighteen. There are FIFTEEN (15) Director
names listed, therefore SIX (6)of them must be “alternates”. Furthermore, one would expect
to see at least ONE Director for each
chapter. In other words,
NINE of the FIFTEEN names
listed should at least be a Director
from each of the chapters. The statutory listing does not qualify which chapter the representative is from.
In order to determine
the chapter represented by any one of the listed
Directors one needs to review
any APLS meeting
notes and the APLS website. If there are no clearly
written notes,
and chapter letters authorizing these people
as primary, or alternate Directors, then they have no authority
within the Bylaws
to act as such.
First, in reviewing the APLS Board meeting notes (as posted on the APLS website
on December 1, 2013)for
late 2012 and early 2013 there are no notes for the appropriate letters from EACH chapter
authorizing a person
as Director. Therefore, the individual chapter information posted on the APLS website
on December 1, 2013 was reviewed to see
if there is a clue as to whom is the chapter Director(s). The following was found:
Mike Fondren
(Central) Primary Listed by ACC
Dale
Mattingly (Central) Alternate Listed by ACC
Jim Carpenter
(Northern) Primary NOT Listed by ACC
Jim Folkers (Northern) Alternate Listed by ACC
Jason
Foose (Mohave) Primary Listed by ACC
Wayne Griffin (Mohave) Alternate Listed by ACC
Doug
Schneider (Saguaro) Primary Listed by ACC
Dave Stratton
(Southeast) Primary Listed by ACC
Charles
Dowdell (Southeast) Alternate Listed by ACC
Dan
Muth (White Mountain) Primary Listed by ACC
Stephen
James (White Mountain) Alternate Listed by State
Stan Dickey (Verde Valley) Primary Listed by ACC
James Crowley (Verde Valley) Alternate Listed by ACC
Tom Homan (Geospatial)
Primary Listed by ACC
Next the “APLS Leadership” information on the APLS website
was reviewed and there are many discrepancies between that list when compared
to the individual chapter information. The APLS Leadership information shows the following persons as “Directors”:
Mike Fondren (Central) Listed by State
Dan
Mardock (Central) NOT Listed by ACC
Jim Folkers (Northern) Listed by ACC
Jason Foose (Mohave) Listed by ACC
Doug Schneider (Saguaro) Listed by ACC
Dave Stratton
(Southeast) Listed by ACC
Dan Muth (White Mountain) Listed by ACC
James Crowley
(Verde Valley) Listed by ACC
Tom Homan (Geospatial) Listed by ACC
Please take time to study all of the different lists provided so far. The inconsistencies, or errors
are quite obvious.
However, there are good reasons the ACC list may not
match an APLS list. But, which APLS list? The APLS website information is contradictory within itself!!
Putting aside administrative lags between the annual ACC “corporate information” and some combination of APLS website
information, the question is whether any of it makes sense. What it all really boils down to is whether the APLS Board of Directors is legitimate and operating within the bylaw structure that was so adamantly passed just a year ago (2012).
So, perhaps
the answer lies within the Board of Director
meeting notes themselves. In examination of the four (4) APLS Board meeting
notes that are posted on the APLS website, and available to the public one can see the
notes from January
2013, April 2013, July 2013, and November 2013.
In everymeeting
the following Directors represented their chapters:
Mike Fondren – Phoenix YES –
Listed by Chapter on APLS website Doug Schneider
– Saguaro YES – Listed
by Chapter on APLS website Dave Stratton – Southeast
YES – Listed by Chapter
on APLS website Stan Dickey – Verde Valley YES – Listed by Chapter on APLS website
Only Stan Dickey
was NOT listed on the APLS website
under “APLS Leadership”.
The Geospatial Chapter had Tom Homan attend 3 of the 4 meetings
and Steve Whitney attend one as the Alternate. Although Steve Whitney is not listed on the APLS website, nor the ACC site, his participation at the July 2013 meeting does is not patently
inconsistent within the bylaws.
The Mohave Chapter had Jason Foose attend
3 or the 4 meetings
and Wayne Griffin
as the Alternate
at the April 2013 meeting.
These two individuals are designated withing the Chapter portion
of the APLS website,
but only Jason Foose
is listed under the “APLS leadership” portion of the website.
However, the actual participatory involvement of them is not patently inconsistent within the bylaws.
The Northern
Chapter had Jim Folkers attend 2 of the 4 meeting
with Jim Carpenter
attending one meeting. Although one can see paper differences in the lists there is nothing patently inconsistent within
the bylaws.
The Yavapai Chapter
had Tom Liuzzo attend 2 of 4 meetings
and at the other 2 meeting
the chapter apparently had no Director
present. The inconsistency here is that NEITHER
the chapter information, NOR the “APLS Leadership” sections of the APLS website
indicate any assigned
Director for the Chapter. The Chapter is struggling to find members and may not meet regularly. The question
here is whether the Chapter did in fact meet all requirements within BOTH it's own Bylaws
AND the APLS Bylaws to appropriately assign Mr. Liuzzo as their Director.
...and lastly...
The White Mountain chapter had Stephen James attend the January
2013 meeting. Mr. James is on the ACC list and he is listed
as an Alternate in the Chapter information on the APLS website.
Where the APLS Board of Directors
seem to break down is demonstrated with representation of this Chapter.
The remaining 3 meeting
were attended by a “proxy” representative (2 times by Jim Muth and 1 time by Dan Puckett).
This is troubling.
The APLS Bylaws are clear that there can be ONE Director and ONE Alternate from each chapter.
Dan Muth is clearly
designated as the primary
Director for this Chapter.
Stephan James is listed on the APLS website as the Alternate. He attended
ONE meeting. Then the Chapter had 2 different
people attend
as “proxy” votes for the other meetings.
There are NO provisions in the APLS Bylaws for “proxy”
representation. There is ONE Director
and ONE Alternate Director, BOTHofwhommust have a written
authorization from
a Chapter Officer
before they can represent
the Chapter.
Interestingly, Dan Muth DID attend all FOUR meetings.
Dan, as the designated Director for the White Mountain Chapter happens to be the Chairman of APLS. As such he is the only APLS Director
that CANNOT vote unless there is a tie vote. NOWHERE
in the Bylaws
is there authorization to allow for a Chapter vote by someone
other than the Chapter Director that is in fact attending a meeting.
The Constitutional Crisis
The bylaws clearly state ONE VOTE per Chapter.
The language in Section 5.01 is clear and unambiguous.
Section 6.01 states “The Board of
Directors shall elect the following Officers a Chairman,
a Vice- Chairman, a Secretary, and a Treasurer. “
The conflicts within the Bylaws are such that IF the interpretation of the Bylaws
is such that a Board Officer
can be “any Professional or Life member”
as defined by Section 3.03, then there is a potential for any ONE chapter
to have TWO votes. The Chairman is authorized to vote ONLY in the event there is a tie. Since the Chairman
is obviously a member of some
chapter, to allow a Chairman to vote would be stacking
the deck and giving one chapter
essentially two votes to tip the scales. One can conversely argue that there is no difference by the Bylaws preventing the Chairman from voting
unless there is a tie. That also would be a negative operator in stacking the deck AGAINST a chapter.
Sowhichisit? Do Chapters
get TWO votes
if they happen to have their member as the Chairman?
Or, does the Chapter yield their standard vote because
their member is the
Chairman?
This is the constitutional issue involved. This is not something
that can be concluded
in a meeting
“on the fly”. If the APLS Board decides,
or already has decided
the interpretations are such that a Chapter effectively gets TWO votes by virtue of the Chairman
being the rogue vote in a tie (total Directors + Chairman), then Section 5.01 becomes inoperative making a crisis
in the bylaws. If the APLS Board decides,
or has decided
that the Board Officers (specifically the Chairman) must FIRST be a Director, then APLS has been operating outside of the Bylaws in that the 2013 meeting notes reflect the APLS Chairman
present at the same time the Chairman's home Chapter had a (undefined) “proxy” voter at the same meeting(s). This application creates a latent
crisis within the bylaws.
Other Bylaw Violation
Article 7:Miscellaneous, Section 7.02 states in part, “The minutes of proceedings of all meetings shall be published on the member'sonlyportionoftheAssociation'swebsite...”. Underlines added for emphasis.
As of 3/12/2014 the notes were available to anyone via the sidebar button
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