Appeal of TINA BARBER-CHYUNG and STEVE ILES -- P.S. Docket No. MD-212

Administrative Law Judges

In the Matter of a Mail Dispute		)	February 23, 1994
Between:				)
					)
TINA BARBER-CHYUNG			)
					)
	and				)
					)
STEVE ILES				)	P.S. Docket No. MD-212

APPEARANCE FOR MS. BARBER-CHYUNG:	Mary E. Von Drehle, Esq.	
					500 West 7th Street, Suite 150
					Tulsa, OK 74119-1032

APPEARANCE FOR MR. ILES:		Raymond J. Dague, Esq.
					200 Empire Building
					472 S. Salina Street
					Syracuse, NY 13202-2401

INITIAL DECISION

This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book § 153.72, which requires the chief field counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Shiloh Shepherd Dog Club of America, Inc., P.O. Box 255, Alexandria, Kentucky 41001-0255. Both claimants to the mail filed submittals in support of their claims. Mr. Iles' submittal included documents, the sworn statement of his attorney and the sworn verification of a member of the board of directors of the organization agreeing to the truth of the facts included in the attorney's statement. Ms. Barber-Chyung's submittal included documents, but did not contain a sworn statement in support of her claim to the mail as required by 39 C.F.R. § 965.5. Neither party filed comments to the other's submittal as permitted by 39 C.F.R. § 965.6. The disputed mail is currently being held by the Alexandria Postmaster.

The findings that follow are based on the parties' submittals and documents they previously sent to field counsel.

FINDINGS OF FACT

1. Shiloh Shepherd Dog Club of America, Inc. ("SSDCA, Inc."), was incorporated as a New York not-for-profit corporation on August 26, 1991. Ms. Barber-Chyung was one of the original incorporators of the corporation. In May of 1992, SSDCA, Inc., began using as its mailing address, P.O. Box 255, Alexandria, Kentucky 41001.

2. Ms. Barber-Chyung served as a director and president of SSDCA, Inc., and was recognized by all parties as the president until December 4, 1993. Mr. Iles was the vice president of SSDCA, Inc., at least until December 4, 1993. The by-laws of the organization provide that the vice president shall exercise the powers of the president in case of the president's death, absence or incapacity. By-Laws, Article III, Section 2 (b).

3. In September of 1993, Ms. Barber-Chyung submitted a Change of Address Order, PS Form 3575, to the Alexandria Post Office directing that the mail addressed to SSDCA, Inc., P.O. Box 255 in Alexandria be forwarded to P.O. Box 309, Silver Springs, New York 14550. Mr. Iles directed the Alexandria Post Office not to honor that request, causing the mail to be held at the post office pending resolution of this dispute.

4. Pursuant to the constitution and by-laws of SSDCA, Inc., established at the time of incorporation,⁽¹⁾ a member may be suspended from all privileges of the organization after a hearing before the board of directors. The charged member is afforded notice and an opportunity to be present at the hearing. Suspension may be imposed by a vote of the majority of the directors attending the hearing. By-Laws, Article I, Section 4.

5. The by-laws provide that vacancies among the directors or officers of the organization are to be filled temporarily by a majority vote of all the members of the board at its first regular meeting after the vacancy, "except that a vacancy in the Office of President shall be filled automatically by the Vice President and the resulting vacancy in the Office of Vice President shall be filled by the Board." By-Laws, Article III, Section 4.

6. By letter of November 10, 1993, Ms. Barber-Chyung was issued notice of charges against her and that a hearing would be held in California, Kentucky, on December 4, 1993 at 10:00 a.m., at which Ms. Barber-Chyung would be afforded an opportunity to personally appear. The notice purported to be on behalf of SSDCA, Inc., and was signed by the secretary of the corporation.

7. Ms. Barber-Chyung did not appear at the hearing, which was attended by five of the seven active members of the board. Ms. Barber-Chyung was suspended from membership and from her position as president by a unanimous vote of the directors present, effective December 4, 1993.

8. By letter dated December 6, 1993, Wendy Fullerton, purporting to be the secretary of SSDCA, Inc., notified Mr. Iles that a special membership meeting had been held, also on December 4, at which a new constitution and by-laws had been adopted and that Mr. Iles had been suspended by the club "President." Ms. Tina M. Barber was identified on the letterhead as the "President."⁽²⁾

CONCLUSIONS OF LAW

1. Postal regulations provide that if disagreement arises regarding delivery of an organization's mail, the mail shall be delivered according to the instructions of the president or equivalent official of the organization. Domestic Mail Manual D042.4.1.

2. Ms. Barber-Chyung was suspended as president of SSDCA, Inc., by the unanimous vote of the directors of SSDCA, Inc., attending the December 4, 1993 meeting in Kentucky.

3. The suspension of Ms. Barber-Chyung created a vacancy in the office of president, and Mr. Iles automatically became the organization's president as of December 4, 1993. Additionally, after her suspension Ms. Barber-Chyung was absent or incapacitated within the meaning of the by-laws, and Mr. Iles, with the support of the majorjty of the board of directors, was authorized to exercise the powers of the president.

4. Therefore, Mr. Iles is the "president or equivalent official of the organization," and he may control delivery of mail addressed to Shiloh Shepherd Dog Club of America, Inc., P.O. Box 255, Alexandria, Kentucky 41001.

5. This decision is based on the limited record presented in this proceeding and decides only the party to control delivery of the disputed mail. Should either party obtain a court order regarding delivery of the mail, postal

regulations provide that the mail will be delivered according to that order. See Domestic Mail Manual D042.6.3.

6. The attached mail delivery order should be issued.

					Norman D. Menegat
					Administrative Judge

1. So far as the record reflects, the relevant sections of the constitution and by-laws were not amended before December 4, 1993. Ms. Barber-Chyung's attorney submitted a few pages of a document titled "Shiloh Shepherd Dog Club of America, Inc., Constitution And By-laws, Revised May 3, 1992," and other documents submitted by Ms. Barber-Chyung refer to additional revisions to the constitution and by-laws in December of 1993. However, in view of the sworn statements submitted on Mr. Iles' behalf disputing the validity of any such attempts to change the governing constitution and by-laws and the absence of evidence from which I can conclude the constitution and by-laws were validly changed, I accept the original by-laws as those applicable in this dispute.

2. As with the purported amendments to the constitution and by-laws, Ms. Barber-Chyung has not offered probative evidence to demonstrate that the directors supporting Mr. Iles, and recognized by all parties as late as September 1993 as the directors of the organization, were validly replaced or that Mr. Iles was suspended from his position as vice president. She has submitted copies of correspondence and minutes of meetings that mention amendments to the by-laws, election of new directors, suspension of Mr. Iles and others, and she uses stationery with a letterhead listing only the "new" directors. However, she has not submitted a sworn statement that would establish the effectiveness of any of the actions or offered other evidence from which I could conclude that changes in structure and control of the organization actually occurred as she contends.