[arin-discuss] No quorum in last election

[Michael T. Halligan]

Dean... Have you considered knitting?

On Feb 1, 2008, at 8:02 PM, Dean Anderson wrote:

> 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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Michael T. Halligan
------------------------
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