In
the Matter of a Mail Dispute Between
JOHN
AND PENNY WEIGAND
and
STAN
SEARFUS
P.S. Docket No. MD 04-101
APPEARANCE FOR DISPUTANTS JOHN AND PENNY WEIGAND:
Penny D. Weigand, Esq.
APPEARANCE FOR DISPUTANT STAN SEARFUS:
Robert J. Steinberger, Esq.
Soden & Steinberger, LLP
INITIAL DECISION
This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) 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 Coronado Navy Swim Association (CNSA), at P.O. Box 180063, Coronado, CA 92178-0063, and at P.O. Box 181853, Coronado, CA 92178-1853. The Coronado Postmaster is currently holding the mail.
Both parties filed sworn written statements, as required by the Rules of Practice, 39 C.F.R. §965.5, accompanied by other supporting documents, and both filed rebuttal, as permitted by 39 C.F.R. §965.6. The following findings of fact are based on all the material submitted by the parties, including that forwarded by the United States Postal Service Law Department, Pacific Area Office.
FINDINGS
OF FACT
1. Coronado Navy Swim Association (CNSA) is a non-profit organization located in Coronado, California and run by its members, who are swimmers or swimmers’ parents. (Searfus July 17, 2004 statement; Weigand July 21, 2004 statement).
2. The CNSA By-Laws (Article VI, Section 2) provide that the organization is managed by a Board of Directors consisting of five officers: President, Vice-President, Secretary, Treasurer, and Ways and Means Chairperson. (By-Laws attached to Law Department forwarding letter).
3. In approximately September 2003, John Weigand became the president of CNSA when the previous president resigned. There is some dispute over whether he was properly elected to the position, but there is no dispute that he took over the duties of president, and no one challenged his authority at that time. (Searfus July 17, 2004 statement; Weigand July 21, 2004 statement).
4. Sometime thereafter, disagreements arose among various members of CNSA over actions taken by Mr. Weigand and other Board members, and also over possible failure by the Treasurer to pay certain bills owed by CNSA. (Searfus July 17, 2004 statement; Weigand July 13 and July 21, 2004 statements).
5. The CNSA By-Laws (Article VIII, Section 1) provide that regular general meetings of the organization shall be held during March and September of each year. The September meeting “shall be known as the annual meeting and shall be for the purpose of electing officers, . . ..”
6. Article VIII, Section 2 of the CNSA By-Laws provides for Special Meetings and states as follows:
Special meetings may be called by the President or by the Board of Directors and shall be called upon the request of five (5) members of the Organization. The purpose of the meeting shall be stated in the call. Except in the case of emergencies, at least three (3) days notice shall be given.
7. On or about April 6, 2004, Mr. Weigand and at least two other Board members voted to terminate the Board membership of the Treasurer, Ms. Keays. (Weigand July 13, 2004 statement; Weigand rebuttal statement, July 21, 2004, Ex. I, attached (letter of April 13, 2004, misdated as April 13, 2002)).
8. On April 22, 2004, Ms. Keays served a written notice on the CNSA membership of a Special Meeting to be held on April 30, 2004. The notice listed four matters to be considered, including, “to discuss the election of all of the directors of the Board, to hold office until the next Annual Meeting of Members or until their respective successors have been elected and qualified.” The notice also listed the names of ten members who had requested the meeting. (Attached to Law Department forwarding letter; also as Ex. 12 to Searfus July 17, 2004 statement, and as Ex. C to Weigand July 13, 2004 statement).
9. A meeting was held on April 30, 2004. The Weigands received the notice of the meeting but neither attended. The By-Laws require that at least 15 members be present at any meeting to constitute a quorum. More than 15 members were present at the April 30 meeting. Those present elected five new officers/directors, including Mr. Searfus as President. (Minutes of Meeting, attached to Law Department forwarding letter; also attached as Ex. 13 to Searfus July 17, 2004 statement, and as Ex. D to Weigand July 13, 2004 statement).
10. At some time in April 2004, one or both of the contesting groups informed the Coronado Post Office of their dispute and the post office began holding the mail addressed to CNSA. (Searfus July 17, 2004 statement; Weigand July 21, 2004 statement; Exs. K and L to Weigand statement).
11. On June 23, 2004, the Postal Service Law Department, Pacific Area Office advised the parties that they were recommending that the postmaster deliver the disputed mail to Mr. Searfus. Mrs. Weigand promptly requested that the matter be forwarded to the Judicial Officer for decision. (Letters attached to Law Department forwarding letter).
12. The contest between the two groups over who
was the rightful governing body of CNSA was presented to the Review Section,
San Diego-Imperial Swimming. A hearing
was held before that body on July 17, 2004.
In a written decision on July 27, 2004, the Review Section found that
the April 30, 2004 meeting of CNSA was properly held and properly conducted,
and ruled in favor of Mr. Searfus’ group, referred to in that proceeding as
Group B. Mr. Weigand’s group, known as
Group A, has appealed that decision to another body within the national
hierarchy known as USA Swimming.
(Searfus rebuttal,
13. POM Section 614.1, provides:
All mail addressed to a governmental or nongovernmental organization (including but not limited to corporations, firms, sole proprietorships, partnerships, joint ventures, and associations) . . . at the address of the organization is delivered to the organization. . . . If disagreement arises about where any such mail should be delivered, it must be delivered according to the order of the organization’s president or equivalent official.[1]
DECISION
Resolution of this dispute is governed by Section 614.1, quoted above. The essence of the dispute is over differing interpretations of Article VIII, Section 2 of the CNSA By-Laws, quoted in Finding #6. The Weigands contend that the April 30, 2004 meeting was not called in accordance with the CNSA By-Laws, that it is contrary to the By-Laws to conduct an election of officers at a Special Meeting, and that any action taken at the April 30 meeting was illegal and invalid. Therefore, they contend that John Weigand is still the lawful President of CNSA. They also argue that, even if the April 30 election is determined to be valid, there is no dispute that Mr. Weigand was still the lawful President until that date and is entitled to any mail currently being held that was mailed before April 30, 2004.
The Weigands interpret Article VIII, Section 2 of the By-Laws to mean that only the President or the Board may call a Special Meeting, and that if other members wish to have such a meeting five or more must request the President or the Board to call the meeting. In this case, Ms. Keays and the others made no request, but merely sent the notice that a meeting would be held. Next, The Weigands cite Article VIII, Section 1 of the By-Laws (see Finding #5) and argue that an election can only be held at the regular meeting in September.
Mr. Searfus argues that Article VIII, Section 2 gives the President or the Board an option, by using the word “may,” to call a Special Meeting if they wish, but makes it mandatory, by using the word “shall,” that a Special Meeting be held when five or more members ask for one. Therefore, there is no requirement for the five or more members to “request” the President to call the meeting. Further, he argues that a Special Meeting may deal with any unexpected circumstances confronting the membership and that there is nothing in the By-Laws that prohibits conducting an election of officers at a Special Meeting.
Mr. Searfus’ interpretation of Article VIII, Section 2, is more persuasive. It would be inconsistent with the purpose of providing for special meetings if the President or a majority of the Board could block action simply by refusing to call a meeting. Even if one were to accept the Weigands’ interpretation of the Special Meeting provision, to hold that the April 30 meeting was invalid merely because the members did not make their “request” to the President, who would have had no discretion under the By-Laws not to call a meeting, would elevate form over substance. Likewise, the need to elect new officers might well be the necessity for a special meeting, and although the By-Laws state that elections will be held in September, the By-Laws do not say that officers can never be elected at any time other than September. The April 22, 2004 written notice met the requirement of giving notice to the membership of the time and purpose of the meeting and the meeting was lawfully held. Therefore, Mr. Searfus is the President of CNSA as of April 30, 2004 and is entitled to direct delivery of the mail.
The Weigands’ alternative argument that Mr. Weigand is still entitled to mail that was mailed or held before April 30 is without merit. POM Section 614.1, quoted in Finding #135, requires that mail addressed to an organization be delivered to the organization, or as directed by the “president or equivalent official.” Any mail addressed to CNSA that has not yet been delivered belongs to the organization. Therefore, Mr. Searfus is entitled to direct the delivery of all of it.
This decision deals only with delivery of the mail. It does not attempt to resolve any financial or other disputes between the parties. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order. POM §616.3.
The Judicial Officer should issue an Order to the Coronado, California Postmaster that mail addressed to Coronado Navy Swim Association (CNSA), at P.O. Box 180063, Coronado, CA 92178-0063, and at P.O. Box 181853, Coronado, CA 92178-1853, be delivered as directed by Stan Searfus.
Bruce R. Houston
Chief Administrative Law Judge
[1] Similar language appears at Domestic Mail Manual (DMM), Issue 58, Revised through June 10, 2004, Section D042.4.1.