In the Matter of a Mail Dispute ) March 23, 1998 Between ) ) EDWIN J. KIRSCHNER ) ) and ) ) ELAINE CARTECHINE ) VIRGINIA BLANCHARD ) P.S. Docket No. MD 98-39 APPEARANCE FOR DR. KIRSCHNER: Patrick F. Roche, Esq. Frese, Nash & Torpy, P.A. 980 S. Harbour City Blvd. Suite 505 Melbourne, FL 32901-1909 APPEARANCE FOR MS. CARTECHINE James Michael Murray, Esq. and MS. BLANCHARD: 1311 S. U.S. 1, Suite B Rockledge, FL 32955-2839
This mail dispute has been docketed pursuant to Postal Operations Manual (POM 7, AUGUST 1, 1996) Section 616.21, 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 Space Coast Writers Guild, Inc., P.O. Box 804, Melbourne, FL 32902-0804. The mail is currently being held by the Melbourne Postmaster.
Both parties filed sworn statements, as required by 39 C.F.R. §965.5, and additional comments, as permitted by 39 C.F.R. §965.6. The following findings of fact are based on all the materials submitted by the parties, including the material forwarded by the United States Postal Service Law Department, Atlanta Office.
1. Florida Space Coast Writers Conference, Inc. was incorporated, as a non-profit corporation, in Florida in September 1982. By amendment to the Articles of Incorporation in March 1991, the name of the corporation was changed to Space Coast Writers Guild, Inc.
2. It is undisputed that from 1985 to December 13, 1997, Edward Kirschner was the president of the corporation.
3. On September 23, 1985, Mr. Kirschner, as president of the corporation, submitted a PS Form 1093, Application for Post Office Box, and Box 804 was assigned to the corporation.
4. At some time during 1997, Mr. Kirschner and his supporters decided to discontinue an annual writers conference that had been sponsored by the corporation, and perhaps also to dissolve the corporation (Kirschner affidavit; several news articles in file). Several other members of the corporation opposed these actions and hired an attorney to represent them in formally contesting the matter, and in challenging Mr. Kirschner's control of the organization (Mr. Murray's letter to Mr. Kirschner, Nov. 26, 1997).
5. On December 13, 1997, this latter group held a meeting, labeled in the Minutes as a "Special Meeting of Membership," for the purpose of removing the existing officers/directors and electing new directors. These members voted unanimously to remove Mr. Kirschner and others from office, and to elect the following new directors: Rick Barbare, Virginia Blanchard, Elaine Cartechine, Leroy Erzinger, Randy Glover, Jonel Kirby and Bill Wilmot (Minutes, signed by Virginia Blanchard). These new directors then held a Directors' Meeting and elected the following officers: Ms. Cartechine - President; Ms. Blanchard - Secretary; and Mr. Glover - Treasurer (Minutes, signed by Ms. Cartechine and Ms. Blanchard).
6. On December 16, 1997, Ms. Blanchard submitted a PS Form 3575, Change of Address Order, on behalf of the corporation, directing that mail addressed to the corporation at Box 804 be forwarded to another address. On December 19, 1997, Mr. Kirschner protested, by letter to the Melbourne Postmaster, thereby precipitating this mail dispute.
The rule that governs the outcome of disputes such as this is found in Section 614.1 of the Postal Operations Manual, which states that in the event of a dispute over mail addressed to a corporation, the mail "must be delivered according to the order of the organization's president or equivalent official."
The position of Disputants Cartechine and Blanchard is that, as of December 13, 1997, Ms. Cartechine replaced Mr. Kirschner as President of Space
Coast Writers Guild, Inc. Disputant Kirschner contends that the actions taken at the December 13 meeting were illegal because that group had no authority to call a membership meeting, and because the actions taken were not in accordance with the Articles of Incorporation. He argues that only the Board of Directors can call a meeting, and that the lawfully constituted Board consists of himself, Mr. Meehan and Mr. Anderson. He also argues that the Articles of Incorporation were amended, effective July 29, 1991, changing the membership from a voting membership to a non-voting membership, and that this amendment also stated that all vacancies on the Board of Directors would be filled by the Directors. Therefore, he says, the votes that purported to remove him from office and elect other Directors and officers were without legal effect. Ms. Cartechine's supporters reply that the Articles of Incorporation were never amended to change the voting rights of the members, and that all their actions were in accordance with the Articles of Incorporation and pertinent Florida Statutes.
The following provisions of the Articles of Incorporation are pertinent:
ARTICLE VI - ORGANIZATION
SECTION 1 - BOARD OF DIRECTORS
The affairs of the Corporation shall be managed by a Board of Directors of not less than THREE (3) nor more than THIRTY-THREE (33) members . . .. Their number, qualifications, terms of office and manner of selection shall be fixed by the Bylaws. The quorum required for the conduct of business shall be fixed in the Bylaws.
. . .
SECTION 3 - OFFICERS
The Officers of the Corporation shall be a President, Vice President and Secretary-Treasurer. The Officers shall be elected annually by the Board of Directors, each to serve for ONE (1) year and until the election of a successor.
. . .
ARTICLE IX - AMENDMENTS
These Articles of Incorporation may be amended at any annual meeting, or at any special meeting called for that purpose, by a TWO-THIRDS (2/3rds) vote of the members of the Board of Directors in attendance at which a quorum is present and voting throughout.
ARTICLE X - BYLAWS
The Bylaws of the Corporation are to be made, altered or rescinded by the Board of Directors in the manner set forth in the Bylaws.
ARTICLE XI - VOTING
Each member shall have one vote at any membership meeting and there may be included in the Bylaws a provision as to the number of members which shall constitute a quorum at any membership meeting.
The following sections of the Florida Statutes on Corporations Not For Profit are applicable:
§617.0701. Meetings of members
3. Special meetings of the members may be called by the president, by the chair of the board of directors, the board of directors, or such other officers or persons as are provided for in the articles of incorporation or the bylaws.
§617.0808. Removal of directors
A director may be removed from office pursuant to procedures provided in the articles of incorporation or the bylaws, which shall provide the following, and if they do not do so, shall be deemed to include the following:
(1) Any member of the board of directors may be removed from office with or without cause by the vote or agreement in writing by a majority of all votes of the membership.
(2) The notice of a meeting of the members to recall a member or members of the board of directors shall state the specific directors sought to be removed.
The only issue to be resolved here is whether the actions taken at the December 13, 1997 meeting lawfully removed Mr. Kirschner from his position as president, and installed Ms. Cartechine as president. As is often the case in mail disputes, many of the claims of both parties are not supported by any evidence of record. In this case, Mr. Kirschner's argument that the Articles of Incorporation were amended in 1991 to take away the voting rights of the membership is not supported by anything other than a memo signed by him. There is nothing to show whether, or when, the board of directors voted on this amendment in accordance with Article IX of the Articles of Incorporation, and nothing to show that this amendment was filed with the State of Florida.
More importantly, however, there is no evidence to show that the December 13 meeting was called in accordance with §617.0701 of the Florida Statute quoted above, or that Mr. Kirschner, and others, were removed from their positions as directors in accordance with §617.0808 of the Florida Statute quoted above. Specifically, it has not been shown that the December 13 meeting was called by someone authorized to do so, or that the necessary notice was given to the membership. Alternatively, neither is there any evidence that removal of the directors was accomplished by written agreement of the majority of the membership. Therefore, because there is no doubt that Mr. Kirschner has been the president of Space Coast Writers Guild, Inc. since 1985, and because I cannot find that he was removed from that office in accordance with any provision of the Articles of Incorporation, Bylaws, or Florida Statutes, I conclude that he is still the president for purposes of resolving this mail dispute.
This decision deals only with delivery of the disputed mail. It does not determine who is best suited to lead the corporation, whether the corporation should be dissolved, or any other dispute that may exist between the parties. If either party obtains a court order that directs delivery of the mail, postal regulations provide that the mail will be delivered in accordance with such an order. POM 616.3.
The attached delivery order should be issued.
Bruce R. Houston Chief Administrative Law Judge