[arin-discuss] No quorum in last election

[Dean Anderson]

As to the matter of "participation", Mr. Curran is correct that the key
issue is the level of participation in an electronic or mail-in vote.  
However, there is no participation where email is merely sent, but there
no response. That communication is one-way. Two-way communication is
required for "participation". Perhaps one can indeed respond "I don't
want to vote" or "none". But if there is no response, then there is no
participation. A dead member, who obviously can't respond, also
obviously didn't partcipate in the election after death.  Mr. Curran
claims incredibly that the dead do participate because he sent them an
email. This is at odds with contract law, too.  A response is required.

Perhaps, interestingly, the LPF was one of the first corporations to
have electronic voting in 1994. Don Knuth (Yes, the famous Knuth) was a
particularly difficult case, because he didnt' want to receive any
email. But the lawyers said we had to send it. If we didnt' send it, we
wouldn't have offered participation, and it has to be offered.  Knuth
didn't have to vote but we had to send the email. Knuth agreed to this, 
with my deepest apologies.

		--Dean

On Fri, 1 Feb 2008, Dean Anderson wrote:

> Mr. Curran ignores the last phrase in Section 13.1-852(A) which states
> 
> "Unless otherwise provided in the articles of incorporation, directors
> are elected by a plurality of the votes cast by the members entitled to
> vote in the election at a meeting at which a quorum is present."
> 
> A quorum must be present before cumulative votes can be counted. Section 
> 13.1-849 specifies the quorum requirements when the quorum requirements 
> are not specified in the bylaws.
> 
> No quorum, no election.
> 
> 		--Dean
> 
> 
> On Fri, 1 Feb 2008, John Curran wrote:
> 
> > Mr. Anderson posted a claim that the recent election of two members
> > of the ARIN Board of Trustees was legally insufficient.
> > 
> > Mr. Anderson's post in part is repeated here:
> > >There was no quorum in (at least) last election of Board Members. At
> > >least 10% of membership is required by the Virginia Nonstock Corporation
> > >Act Section 13.1-849, in order to constitute a quorum.  A membership
> > >list of 2945 members therefore requires 295 votes to be cast. Only 196
> > >votes were actually cast, insufficient for a quorum. No quorum. No
> > >election. So, Paul Vixie and Bill Manning are not on the ARIN Board of
> > >Directors.  A new election must be held that has a quorum.
> > 
> > I am the Chairman of the ARIN Board of Trustees, and I am confident
> > that the procedures followed by ARIN are democratic and conducted in
> > accordance with the relevant Bylaws and Virginia law.
> > 
> > Mr. Anderson's argument is based on reference to Section 13.1-849 of
> > the Virginia Nonstock Corporation Act, which is entitled "quorum and
> > voting requirements for voting groups" and his reasoning on the words
> > of paragraph (A).  However, paragraph (D) of the same section
> > specifically carves out the election of directors.  Section 13.1-849(D)
> > directs you instead to Section 13.1-852(A) which states that:
> > "ŠUnless otherwise provided in the articles of incorporation, directors
> > are elected by a plurality of the votes cast by the members entitled to
> > vote in the election at a meeting at which a quorum is present." 
> > No percentage of membership is stated in Section 13.1-852 as a
> > requirement for quorum.  Mr. Anderson mistakenly reads the 10%
> > membership requirement from 13.1-849 into this gap.  That is in error. 
> > In fact, given that the legislature understood how to impose such a 10%
> > membership requirement, as is demonstrated in Section 13.1-849 as cited
> > by Mr. Anderson, the absence of that 10% membership requirement in
> > these other portions of the statute is compelling.
> > 
> > Further, the Virginia Nonstock Corporation Act Section 13.1-846(B)
> > allows, "When directors or officers are to be elected by members, the
> > Bylaws may provide that such elections may be conducted by mail."
> > Note that ARIN's Bylaws, Article VI, Section 4, paragraphs (g) and
> > (h) set forth the voting procedure for election of the Trustees.
> > Specifically, elections are conducted during a 7-day election period
> > electronically via the Internet, *not by an in-person meeting*, and
> > voting is open and available to all general members.  Because of this
> > electronic procedure, each member participates in the election
> > process, receiving four e-mail reminders to vote during the week that
> > the election takes place.  As every general member utilizes Internet
> > connectivity (which relates to the very purpose of this organization)
> > in interactions with ARIN, it has been our consistent position that all
> > general members "participate" in the election process regardless of
> > their physical location. (It is also worth noting that, as a corporate
> > law matter, the concept of "quorum" does not relate to the number
> > of votes cast at a meeting but rather the level of participation.
> > Corporate practice simply does not rely upon votes cast as the
> > method for determining whether quorum requirements have
> > been satisfied.)
> > 
> > Notwithstanding, in light of the topics raised, I believe it would
> > be helpful to put a placeholder to discuss voting procedures and
> > membership issues on the agenda of the ARIN Member Meeting
> > that will take place in Denver, Colorado on April 9, 2008.  At that
> > meeting, anyone who wants to raise a concern about modifying
> > the Articles or Bylaws to more explicitly describe the procedures
> > that we have consistently and democratically followed would be
> > welcome to raise that issue.  If Mr. Anderson disagrees with these
> > procedures and wishes to suggest even better ones, we would
> > welcome his input in person or via remote participation.
> > 
> > I've provided this brief response today for sake of timeliness;
> > additional legal and practical arguments undoubtedly apply here.
> > 
> > /John
> > 
> > John Curran
> > Chairman, ARIN Board of Trustees
> > _______________________________________________
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> > 
> 
> 

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