In
the Matter of a Mail Dispute Between
EARL
TIMMONS
and
THOMAS
D. KERRY
P.S. Docket No. MD 05-189
APPEARANCE FOR DISPUTANT EARL TIMMONS:
C. W. Lartigue, IV, Esq.
APPEARANCE FOR DISPUTANT THOMAS D. KERRY:
Phillip A. Gattuso, Esq.
56 Westbank Expressway
P.O. Box 1190
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 Church of God, Worldwide Ministries, at P.O. Box 2005, Gretna, LA 70054-2005, and at P.O. Box 6879, Sevierville, TN 37864-6879. The Gretna and Sevierville Postmasters are 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 also filed additional materials as rebuttal, as permitted by 39 C.F.R. §965.6. Because of the effect of Hurricane Katrina on the New Orleans area, the parties were allowed some additional time for filing information and arguments. 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, Tampa Office.
FINDINGS OF FACT
1. On April 14, 2004, The Churches of God,
Worldwide, was incorporated as a non-profit corporation in Louisiana. The Articles of Incorporation (Article VIII) provide
that the corporation shall be managed by a Board of Directors consisting of
three members elected by the membership annually. Article VIII further provides that the Board
shall elect officers annually. The
original members of the Board of Directors were Mr. Timmons, Mr. Kerry, and
George Trent. Mr. Trent was President,
Mr. Timmons was Vice-President, and Mr. Kerry was Secretary/Treasurer. The name of the corporation was changed to The
Church of God, Worldwide Ministries (COGWM), effective
2. Article V of the Articles of Incorporation states that the membership of the corporation consists of “all persons who are active members of this church,” as evidenced by names on the “membership rolls,” and that “[E]ach member shall have one vote and all members shall have equal rights and privileges, . . .”
3. Article XI of the Articles of Incorporation, after listing the three original officers, states that “[T]he Officers and Directors of this corporation shall serve until their successors are elected in accordance with the provisions herein.”
4. Sometime in early 2005, a controversy arose over the church’s financial management, including some actions by Mr. Kerry as treasurer. An accounting firm was hired to do an audit. (Ericksen, Krentel & LaPorte August 1, 2005 letter and Memorandum, attached to Timmons October 3, 2005 statement).
5. By email message to Mr. Trent on May 25, 2005, Mr. Kerry stated that, “For the sake of the church . . ., I will temporarily resign my position as the secretary/treasurer of the board effective today May 25, 2005.” He further stated that he would continue to work as the director of operations, but would “remain off the board until the audit is completed.” He recommended that Bruce Chapman be appointed to replace him on the Board. (Attached to Lartigue August 24, 2005 letter).
6. On June 1, 2005, Mr. Trent and Mr. Timmons held a “Special Meeting of Directors” in Sevierville, Tennessee. At this meeting, they accepted the resignation of Mr. Kerry, appointed Mr. Shuster to fill his seat on the Board, and elected Mr. Chapman to be Vice-President and Mr. Timmons to be Secretary/Treasurer. Mr. Trent remained as President. They also adopted several Resolutions, including one to close P.O. Box 2005 in Gretna, and have all mail forwarded to P.O. Box 6879 in Sevierville. (Minutes of meeting, signed by Trent and Timmons, attached to Lartigue October 15, 2005 submission).
7. On June 17, 2005, Mr. Kerry and his supporters held a “Special Meeting of the Board of Directors.” The minutes of this meeting note that a “Provisional Board was elected by a majority of the Ministry,” on June 5, 2005. This Provisional Board, consisting of Bruce Chapman, Ian Hufton, Manis Sammons, Larry Summerville and Elwood Woodcock, held the June 17 meeting and all signed the minutes. Mr. Trent, Mr. Timmons, Mr. Shuster and two others were invited but chose not to attend. At this meeting the Provisional Board was made permanent and the following officers were chosen: President – Mr. Summerville; Vice-President – Mr. Hufton; Secretary/Treasurer – Mr. Sammons. Mr. Kerry was designated Director of Operations and Registered Agent. (Kerry affidavit, Ex. E).
8. Following the June 17, 2005 meeting, the five Board Members listed above, plus Mr. Kerry, sent letters to Mr. Trent and Mr. Timmons, informing them that their “credentials” had been revoked and that they were no longer members of the Board of Directors. Separate, but similar, letters to Mr. Trent and Mr. Timmons were sent by Mr. Phillips, then the attorney representing Mr. Kerry’s group. (Kerry affidavit, Exs. F, I and J).
9. Mr. Kerry’s group also protested the Tiimmons group’s attempt to have mail forwarded from P.O. Box 2005 in Gretna to P.O. Box 6879 in Sevierville, and all mail addressed to COGWM at both addresses was placed in dispute. (Law Department forwarding letter, Jeff Kerry letter to Mark Dennett attached).
10. Some legal proceedings relating to the dispute over control of the corporation and financial matters involving the corporation are pending in the 24th Judicial District Court for the Parish of Jefferson, Louisiana. The record does not show that any rulings have been made by that court. (Pleadings attached to Kerry affidavit and to Lartigue October 15, 2005 submission).
11. POM
Section 614.1 provides:
All mail addressed to a governmental or nongovernmental organization (including
. . . corporations, . . .), . . . 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
Much of the argument here is over whether Mr. Kerry is guilty of financial improprieties or whether he has been unfairly accused. It is not our function to resolve that issue.
Section 614.1 of the POM, quoted above, applies. There is no dispute over the fact that Mr. Trent was elected President of the corporation in May 2004, in accordance with the Articles of Incorporation.[2] With that as a starting point, we will continue to recognize his authority to receive the mail unless the evidence demonstrates that he has lawfully been replaced as Mr. Kerry contends.
Mr. Kerry states that there are approximately 400 members of COGWM, including eleven ministers. Of this total, he claims that approximately 300 members and six ministers are aligned with his group. It is this group of six ministers that held the meetings on June 5 and June 17, 2005, on which he relies for arguing that Mr. Trent and Mr. Timmons have been removed from office and replaced by the men he names (see Finding #7).
Although not articulated or explained in any detail, part of Mr. Kerry’s argument is that the “ministers” have status above the general membership, hence his contention that the majority of the ministers (6 of 11) were able to elect a new Board of Directors and new officers. This seems contrary to Article V and Article VIII of the Articles of Incorporation and I can find no authority for it. With his affidavit, Mr. Kerry included a partial copy of a “Constitution and By-Laws,” but they are incomplete, and contain no date or signatures. They do state that candidates for the Board of Directors “shall be selected from among the ministry,” and there are other references to “the ministry.” Nowhere, however, is “the ministry” defined and there is no language to reconcile the apparently contrary provision in the Articles of Incorporation, which says that Board Members are elected by “the membership.”
The evidence of record supports Mr. Trent’s and Mr. Timmons’ contention that they are still members of the Board of Directors and that Mr. Trent is still the President of The Church of God, Worldwide Ministries.
This decision deals only with delivery of
the mail. It does not attempt to
determine who are best suited to be the corporation's Directors or Officers, or
to resolve any underlying 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 Gretna, Louisiana and
Sevierville, Tennessee Postmasters that the disputed mail should be delivered as
directed by George Trent.
Bruce
R.
Chief
Administrative Law Judge
[2] This case was docketed in Mr. Timmons’ name. He and Mr. Trent are acting in concert in
this matter. Likewise, Mr. Kerry seems
to be the spokesman for his group, although it is Mr. Summerville who is
President if their arguments prevail.