April 19, 2005
In the Matter of a Mail Dispute
Between
ROBERT KELIIHOOMALU
and
ANTOINETTE K. ALMEIDA
P.S. Docket No. MD 04-174
APPEARANCE FOR DISPUTANT ROBERT KELIIHOOMALU:
Robert Keliihoomalu
P.O. Box 5026
Hilo, HI 96720-1026
APPEARANCE FOR DISPUTANT ANTOINETTE K. ALMEIDA:
Antoinette K. Almeida
132 Kaeie Place
Hilo, HI 96720-5206
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 the Kalapana Ohana Association at P.O. Box 1773, Pahoa, HI 96788-1773. The Pahoa Postmaster is currently holding the mail.
Both parties filed written statements, as required by the Rules of Practice, 39 C.F.R. §965.5, and many other documents. The following findings of fact are based on all the material submitted by the parties, including the material forwarded by the United States Postal Service Law Department, Pacific Area Office.
FINDINGS
OF FACT
1. The Kalapana Ohana Association (KOA), a non-profit corporation, was incorporated in Hawaii in June 1995. Its purpose was “to maintain historic church buildings at Kalapana.” (Articles of Incorporation, found at pp. 44-51 of Almeida December 30, 2004 submission).
2. The Articles of Incorporation stated that the corporation would be managed by a Board of Directors and named seven original Directors. The Articles also named the original officers, including Robert Keliihoomalu as President. Thereafter, officers would be elected by the Board, as provided in the By-Laws.
3. An Annual Meeting of the Association was held on July 10, 2004. Through the use of 53 “proxies” submitted by Mr. Kenison, a Director, a new Board of Directors was elected. The new Board then elected officers, and Ms. Almeida was elected President.[1]
4. The July 10 meeting was apparently very contentious, and shortly after the meeting, several members expressed dissatisfaction with the way the meeting was conducted, including the use of the proxies, and with the results of the election. (Several letters attached to Keliihoomalu March 3, 2005 submission; also, Kenison letter attached to Almeida December 30, 2004 submission).
5. On July 14, 2004, Mr. Keliihoomalu, as President, and three other members of the pre-July 10 Board of Directors, wrote to Ms. Almeida, stating that the Board of Directors had determined that the July 10 election results were “null and void” because they could not confirm the validity of the proxies. (Keliihoomalu March 3, 2005 submission, Ex. C).
6. On August 14, 2004, Mr. Kenison, reacting to criticism over the July 10 meeting and election and expressing a desire to reunite the membership, issued a notice to the KOA membership that he was calling a Special Meeting. This was based on a petition signed by more than 25% of the members, in accordance with the By-Laws. (Almeida December 30, 2004 submission, pp. 19-20).
7. The Special Meeting was held on September 25, 2004. Ms. Almeida and her group did not attend. An election of directors was conducted by those present and “new” directors were elected. Mr. Keliihoomalu was again chosen to be President. (“Prefatory Summation” and Minutes attached to Keliihoomalu March 3, 2005 submission as Ex. F).
8. In the following months both groups of directors held Board Meetings and both claimed to be carrying out the mission of the KOA. (Minutes of meetings attached to Almeida December 30, 2004 submission and to Keliihoomalu March 3, 2005 submission).
9. On October 1, 2004, Ms. Almeida asked the post office to change the lock on KOA’s post office box. This was done, and shortly thereafter one of the officers of Mr. Keliihoomalu’s group complained, thus precipitating this mail dispute. (Pahoa Post Office OIC November 18, 2004 letter to Law Department, attached to Law Department forwarding letter).
10. KOA’s By-Laws contain the following pertinent provisions:
Article 2, Section 3. Special Meetings. “Special meetings of the members may be held at any time upon the call of the President, or upon the written request of two-thirds (2/3) of the directors, or twenty-five percent (25%) of the members.”
Article 2, Section 8. Voting. “At every meeting of the members, each member shall be entitled to one (1) vote which may not be exercised cumulatively. Members may vote in person or by proxy executed in writing by the member or the member’s duly authorized attorney-in-fact. No proxy shall be valid if not filed with the Secretary ten days prior to any meeting, or after eleven months from the date of its execution, . . ..” (By-Laws attached to Law Department forwarding letter).[2]
11. POM
Section 614.1, provides:
All mail addressed to a governmental or nongovernmental
organization . . . 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.[3]
12. The dispute over which group should be
recognized by the State of Hawaii as the KOA Board of Directors is under review
by the Hawaii Department of Commerce and Consumer Affairs. (Law Department forwarding letter and Law Department
December 6, 2004 letter to Mr. Keliihoomalu).
DECISION
Resolution of this mail
dispute is governed by Section 614.1, quoted above.
Ms. Almeida argues that she was duly elected at the July 10, 2004 meeting and that no one protested about the proxies until the meeting was over.
Mr. Keliihoomalu contends that the July 10, 2004 election was invalid because of the matter of the proxies, and that he was properly elected at the September 25, 2004 Special Meeting.
The flaw in Ms. Almeida’s argument is that there is nothing in the record to show that the proxies were used in accordance with Section 8 of the By-Laws, quoted above. Rather than having been filed with the Secretary ten days before the meeting, it appears that they were simply presented and counted at the meeting. Therefore, whether or not anyone made a specific protest at the time, the proxies were not properly counted.
It appears that the September 25, 2004 Special Meeting was properly noticed and conducted. Additionally, once the July 10, 2004 election is determined to be invalid, it is correct to recognize Mr. Keliihoomalu as President because he was President before the July 10, 2004 election. Under either theory, therefore, the mail should be delivered as directed by Mr. Keliihoomalu.
This
decision deals only with delivery of the mail.
It makes no judgment as to which group is best suited to lead the
Kalapana Ohana Association, and the Association is certainly free to hold
another election to settle the matter, as has been suggested in some of the
letters included in the file. 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 Pahoa, Hawaii Postmaster that the
disputed mail should be delivered according to the direction of Robert
Keliihoomalu.
Bruce R. Houston
Chief Administrative Law Judge
[1] It is unclear whether Mr. Keliihoomalu had remained
President from 1995 to 2004, but several documents indicate that he was the
President immediately prior to the July 10, 2004 meeting.
[2] The By-Laws
are somewhat confusing, as they contain two separate parts labeled “Article 2,
Board of Directors.” The first, however
(from which the above quotes are taken), clearly deals with general membership
matters, including membership meetings.