TITLE: BYLAWS INTERPRETATION REGARDING GPCA BYLAWS SECTIONS 6-3, 7-1.4 AND 7-1.5, THAT WOULD UNSEAT ZACK BEATTY, MIKE FEINSTEIN AND TRACY LARKINS FROM THE GPCA COORDINATING COMMITTEE
Decision Item

SPONSORING COMMITTEE: Bylaws Committee

PRESENTERS/CONTACTS: Bob Marsh (bob@marsh.name)

BACKGROUND (SUMMARY): This proposal addresses a procedural disagreement over who are the recognized Coordinating Committee Representatives from LA County. 

When such disagreements exist, GPCA Bylaws provide for an advisory opinion by the Bylaws Committee, then a bylaws interpretation by the CC that is binding until the next General Assembly, which can then make a final ruling.

In January, the Bylaws Committee opined that the sitting reps could not be removed without an interpretation to the contrary. The CC then failed to make any interpretation of its own. Therefore, this proposal provides for such an interpretation, if the General Assembly wishes to make it.

PROPOSAL: 
That the General Assembly make a bylaws interpretation that:

Finding #1) A Region can overturn the election of its Alternate Regional Representative by a simple majority vote, by declaring that the Regional Representative for whom the Alternate was elected, should not have been considered to be holding that office at the time of the election of the Alternate, and therefore the Region can remove that Regional Representative post-facto, without going through the recall process (which requires a 2/3 vote) and giving that Regional Representative his/her own hearing, and it can do so, even after that Regional Representative has already resigned his/her seat, and it can also then remove the Alternate from office as a result, also without recalling him/her directly, and giving him/her his/her own hearing.

Finding #2) A Region can change the length of a Coordinating Committee term to any length in the middle of an existing term, instead of two years as defined in the GPCA Bylaws.

Finding #3) A Coordinating Committee member can be removed from office by the Region without going through the recall process.

TIMING: Effective immediately. If this proposal passes, it would establish a bylaw interpretation under GPCA Bylaw 7-3.2 and have the effect of immediately unseating Beatty, Feinstein and Larkins from office, assuming that the GPLAC otherwise met quorum of voting members for all relevant decisions previously taken.

RESOURCES: None

COMMITTEE DECISION: Approved, 100% approval (vote between meetings)

FURTHER BACKGROUND (ANALYSIS): Since September 2006 there has been disagreement by some over the legitimacy of the Regional Representatives on the Coordinating Committee from Los Angeles County. This has made it difficult for the Coordinating Committee to do its normal business, as there are disputes over who are its decision-making members.

In an attempt to address this situation, GPCA members have looked to the GPCA Bylaws for guidance, and found in the process that there is also disagreement about how the bylaws themselves should be interpreted in this case.

Fortunately, GPCA Bylaw 7-3.2 describes the process by which bylaw ambiguities and/or procedural disagreements may be addressed: 

7-3.2 Bylaws Interpretation

In cases of bylaw ambiguity or procedural disagreement, the General Assembly shall decide for itself the meaning of its bylaws or the appropriate procedure to be followed. Between General Assembly meetings, the Coordinating Committee shall decide these questions subject to review at the next General Assembly meeting. Bylaws Committee and its coordinators are charged with assisting with the interpretation of the Bylaws and the resolution of procedural questions.

On November 26th, 2006, Coordinating Committee Co-Coordinators Mike Feinstein, Paul Franklin and Laura Wells sent three different questions to the Bylaws Committee seeking bylaws opinions, and Coordinating Committee Co-Coordinator Sharon Peterson sent in a fourth, also seeking a Bylaws Committee opinion. The Bylaws Committee met four times during December 2006 and January 2007 and came to a decision on all four questions, three of which are relevant to the issue of regional representation from Los Angeles County.

The Bylaws Committee, by 86% vote, found that the procedures used by the GPLAC to remove Zack Beatty, Mike Feinstein and Tracy Larkins from the Coordinating Committee were not in keeping with GPCA Bylaws.

However, when these questions were agendized for the February 5th, 2007 Coordinating Committee Teleconference, they were not permitted to be heard, let alone voted upon. This followed a pattern where earlier fact-finding proposals placed on both the October and November Coordinating Committee agendas about the same issue was also not allowed to be heard or voted upon. 

As a result of the GPCA Coordinating Committee's meet its responsibilities under 7-3.2, the request for a Bylaws interpretation in response to these questions is brought directly to the General Assembly by the Bylaws Committee.

The form of this proposal offers the General Assembly an interpretation that would have the effect of unseating existing, participating members of the CC who are in the middle of their terms, which is the action that some members of the GPLAC seek, but that the Bylaws Committee found is in conflict with GPCA Bylaws.

In addition to the opinion by the Bylaws Committee, this proposal sets the default GPCA position by action of the General Assembly with these premises: 1) Beatty and Larkins were elected to two year terms and assumed office under GPCA and GPLAC Bylaws; 2) Feinstein was similarly elected and assumed office under GPCA and GPLAC Bylaws as an alternate, 3) no recall procedure was followed to remove them, as is provided for under GPCA Bylaws, and 4) the starting and ending times of the two-years terms to which they were elected could not be radically changed in the middle of the those terms, also under GPCA Bylaws. 

Therefore, for Beatty, Feinstein and Larkins to be removed, it is necessary for a new, different bylaws interpretation to be made in order to remove Representatives from office under the September 17th and/or November 11th GPLAC actions (regarding Feinstein) and the November 11th GPLAC actions (regarding Beatty and Larkins). In the proposal above, Finding #1 applies to the September 17th GPLAC action and Finding #2 and Finding #3 apply to the November 11th GPLAC action. As regards the November 11th GPLAC action, both Findings 2 and 3 would need to be made a valid, as neither of them separately would validate the November 11th action of the GPLAC.

A fuller discussion of the September 17th and November 11th GPLAC actions follows below. It is important to note that in seeking such a bylaws interpretation in response to these questions, such an action does not establish a precedent that the CC has the ability to 'seat' or 'not seat' Regional Representatives elected by their regions. This power does not exist in GPCA Bylaws.

If it wishes to establish a completely new process for removing regional representatives to the Coordinating Committee, the General Assembly must therefore create a new bylaws interpretation to address ambiguities and procedural disagreements inherent in the current situation. This interpretation process is described in the bylaws (sec# 7-3.2).

BACKGROUND DETAILS AND TIMELINE

On March 26th, 2006, the GPLAC County Council elected three Regional Representatives to two-year terms - Zack Beatty, Tom Bolema and Tracy Larkins. (http://www.cagreens.org/lacounty/2006-03/minutes_march26th.html) Their election was communicated to the Coordinating Committee on March 31st, 2006 (http://marla.cagreens.org/mailman/private/gpca-cc/2006-March/010833.html), along with the agenda/minutes of the meeting at which they were elected, which included a list of who voted and how quorum was reached. Beatty, Bolema and Larkins then began participating on the Coordinating Committee upon their election, and this is recorded in the Coordinating Committees minutes since. 

On June 11th, the GPLAC County Council elected Mike Feinstein as an alternate for Tom Bolema. (http://www.cagreens.org/lacounty/2006-06/minutes_june11th.html). This election was communicated to the Coordinating Committee, along with a record of the agenda/minutes of the meeting at which they were elected, including a list of who voted and how quorum was reached (http://marla.cagreens.org/mailman/private/gpca-cc/2006-June/012018.html). 

Feinstein served in Bolema's absence at the June 23rd Coordinating Committee meeting in Moorpark. On July 23rd, Bolema resigned his seat (http://marla.cagreens.org/mailman/private/gpca-cc/2006-July/012299.html), which Feinstein then assumed and his participation has been recorded in the Coordinating Committee minutes ever since.

SEPTEMBER 17TH GPLAC ACTION

On September 17th, the GPLAC County Council agendized a proposal to declare invalid Feinstein's election. No copy of approved minutes from that meeting has been sent to the Coordinating Committee. There has been dispute within LA County about whether quorum was reached on that action and this concern is supported by records from the GPLAC email archive, which show only 13 people participating in the decision-making on this issue, when quorum at that time was 14 (out of 26 GPLAC County Councilmembers) (http://lists.cagreens.org/mailman/private/gplac-cc/2006-October/000614.html) 

Notwithstanding this, the October 2nd Coordinating Committee teleconference was brought to a standstill over this matter by those favoring the 'invalidation' position, leading to the Coordinating Committee not even able to approve its agenda to take an action on its regular business. Together with a similar shutdown of the Coordinating Committee on its November teleconference, the GPCA was not able to host a General Assembly in January 2007 as had been planned, because the Coordinating Committee was prevented from even hearing a proposal to schedule the meeting.

A request for a bylaws interpretation to address the September 17th GPLAC action (#1 below) was sent to the Bylaws Committee by Coordinating Committee Co-coordinator Sharon Peterson on December 6th, 2006. It relates directly to whether the GPLAC can, under GPCA bylaws, declare an election like Feinstein's invalid, assuming the GPLAC had quorum on September 17th when it considered the matter. 

The Bylaws Committee considered this question and found there are circumstances under which an election can be overturned, but not those circumstances associated with the September 17th GPLAC action. 

Specifically, the Bylaws Committee opinion stated:

"Under certain conditions, yes. An election could be overturned by the constituent body on the basis of lack of quorum for the meeting during which the election was held, violation of the GPCA bylaws or regional process during the course of the election, electoral errors made at the time of the election, or a calculation error in the results. It is recommended to do this within two months of the election. If an election met the criteria of the GPCA bylaws and regional process at the time, it could not be retroactively overturned without following the recall procedure to recall the seated representative."

How does this apply to the September 17th GPLAC action? In effect, what the GPLAC sought to do that day, is to remove one person from office (Feinstein), by declaring retroactively that another person (Bolema) was not really in office - and to do so without going through the formal recall process about either individual, with requires a higher threshold (2/3) than does a simple 'business decision' (simple majority) in the GPLAC to declare an election 'invalid.' 

To address the GPLAC's approach, Coordinating Committee Co-Coordinators Mike Feinstein, Paul Franklin and Laura Wells submitted the following question on November 26th, 2006 to the Bylaws Committee, seeking an advisory opinion (http://lists.cagreens.org/pipermail/bylaws/2006-November/003285.html):

Can a Coordinating Committee member be removed from office without going through the recall process?

Is there any provision in the bylaws for removal of a representative other than a recall? Is there any distinction made between removal of a representative from office and a recall of that representative?

Then the Bylaws Committee answered as follows: 

"There is no provision in the GPCA bylaws, other than a recall, for removing a representative from office. There is no distinction made between the removal of a representative from office and a recall of that representative. "

This suggests that at a minimum, to remove Bolema or Feinstein, the GPLAC would have had to go through a recall process. Advocates for the GPLAC's position have argued that Bolema was not a resident of LA County as the time, and therefore should not have been considered a Regional Representative at the time, and that therefore no one should have been able to have been elected as his alternate. 

GPCA Bylaw 6-3.1(a) specifically addresses this kind of situation. It states "resignation is implied . [when) the member moves out of the region they represent ]. If they do not resign however, this is grounds under Bylaws 6-3.3 for a recall of that representative. So if the implied resignation is contested, it is grounds for a recall, which requires an actual recall hearing and vote, which would have given Bolema the ability to state his case.

However, no such recall procedure took place for Bolema. Had it occurred while Bolema was still on the Coordinating Committee, he would have informed the GPLAC that at the time of the June 11th GPLAC County Council meeting at which Feinstein was elected as his alternate, Bolema was indeed a resident and a registered Green in Los Angeles County - something he informed the Coordinating Committee of when this issue was raised months later in September 2006.

However, not only did no recall hearing occur for Bolema, but the action taken to, in effect, retroactively recall him, came two months after he resigned from the Coordinating Committee. About such a situation, the Bylaws Committee considered the following question:

May a person be recalled retroactively? If so, are there any restrictions on determining the effective date of recall? Would votes taken during that time have to be changed to remove the rep's votes retroactively? May a person be recalled who is no longer in office?

To this the Bylaws Committee answered:

No. There are no provisions in the GPCA bylaws for a retroactive recall or removal from office. If a region goes through the procedure of removing its representative from office according to Paragraph 6-3.3, the removal takes effect as of the recall decision by the constituent body after following the recall procedure in 6-3.3.

In effect, the Bylaws Committee's opinion was that had Bolema been given a recall hearing on or before June 11th - and had the evidence presented at that time led to his recall, then the June 11th Coordinating Committee alternate election would not have been able to have been held, because Bolema would no longer have been a member of the Coordinating Committee at that time. But because the GPCA's recall procedures were not followed at that time, he could not be 'retroactively recalled', nor could actions taken while he was still considered to be in office be invalidated post-facto months later.

The Bylaws Committee then considered how this situation applied to Feinstein, who was elected in a two-way race (Ellen Maisen also ran for the seat), at a properly noticed meeting with quorum met:

Can a second person be removed from office without a hearing under 6-3.3(c), if they served as an alternate for a person who is recalled? Or are they entitled to a hearing under 6-3.3(c) of their own? 

To this the Bylaws Committee answered:

The process for removing a representative is stipulated in the bylaws without any distinction between those who were elected directly to the position and those who were formerly alternates and then replaced another representative. Unless stipulated by a region's alternate process, a region has a choice at the time of resignation or recall of a representative whether to hold a new election for that position or allow the alternate to replace the representative. Once that decision is made, the new representative is entitled to a fair hearing in compliance with the bylaws. A region is free to recall more than one representative or alternate, but the region must go through the recall procedure for each.

In effect, the Bylaws Committee's opinion was that once Feinstein was elected at a properly noticed meeting with quorum met, he could not be removed without a recall process. The Bylaws Committee then further considered the question whether Feinstein could be removed based upon issues surrounding Bolema, or whether the issues had to be specific to him:

If they are entitled to a hearing of their own, can they be recalled based upon the recall of the person for whom they served as an alternate or must they be recalled based upon issues specific to them? If they can be recalled on the basis of issues of the person for whom they were an alternate, can such a recall be performed retroactively?

To this the Bylaws Committee answered:

As stated earlier, recalls take effect as of the recall decision after following the recall procedure. They cannot be performed retroactively. The constituent body may hear all the issues related to the representative being recalled.

Hence, the Bylaws Committee's opinion was that if Feinstein were to be removed from his position, it had to be on issues related to him, not to another. Finally the Bylaws Committee affirmed its opinion that a simple majority 'business decision' of the GPLAC could not take the place of an actual recall hearing, with a 2/3 required decision-making threshold. 

November 11th GPLAC action

On November 11th, the GPLAC held a 'regional meeting' outside of its regular County Council meeting and ostensibly conducted elections to elect new representatives to all three seats elected by Los Angeles County; and in the process declared that 'new' two year terms would begin in November 2006 and run until November 2008, despite the GPLAC previously having two year terms running from April 2000-April 2002, April 2002-April 2004, and April 2004-April 2008.

First of all, there are no provisions under GPLAC Bylaws for regional meetings that open up GPLAC decision-making to anyone other than County Councilmembers. Second, GPLAC Bylaws further stipulate that the County Council and only the County Council elects Coordinating Committee Regional Representatives. Third, no copy of approved minutes from that 'meeting' have ever been sent to the Coordinating Committee, and hence there is no record of who voted how or whether quorum was reached. Fourth, had such an election been otherwise valid under GPLAC Bylaws, there was not a quorum of GPLAC County Councilmembers participating in the vote, and the GPLAC has never submitted minutes to the Coordinating Committee from this November 11th action to suggest otherwise. Indeed the GPLAC minutes from that Regional Meeting do not even list who participated in the election (http://www.cagreens.org/lacounty/2006-11/minutes_2006_11_11.htm).

All of these concerns related to problems with the November 11th 'election' under GPLAC bylaws. But separate and above these concerns, GPCA Bylaws call for two-year terms for Regional Representatives, but holding 'new' elections less than eight months after the beginning of the 2006-2008 terms (elected on March 26th, 2008) has the de-facto effect of shortening a two-year term to less than 1/3 of that, a direct conflict with GPCA Bylaws.

Despite all of these problems with the November 11th 'election, the same portion of the Coordinating Committee that had earlier defended the September 17th GPLAC 'action' now insisted that the three individuals 'elected' on November 11th be given decision-making privileges on the Coordinating Committee. 

This has had the net effect of making almost any subsequent decision-making impossible on the Coordinating Committee possible, because disagreement over who is able to cast votes from Los Angeles County leads to different results depending upon whose votes are counted. A few consensus-driven decisions have been able to be made. But other decisions like fulfilling the Coordinating Committee's responsibility to make its Standing Committee appointments - which are done by Single Transferable Vote - have been rendered impossible. Then when it came time in February to fulfill the Coordinating Committee's responsibilities under 7-3.2 and make a bylaws interpretation to revolve this question, the same individuals on the Coordinating Committee prevented that interpretation from even being heard.

Putting aside that the GPLAC's November 11th action was in conflict with its own Bylaws, from the GPCA's perspective, an additional bylaws interpretation is necessary about whether a two-year Coordinating Committee term can be so drastically shortened as the GPLAC attempted to do, especially in the middle of the term after individuals have already been elected to fill it. To this end, Coordinating Committee Co-Coordinators Mike Feinstein, Paul Franklin and Laura Wells submitted the following question on November 26th, 2006 to the Bylaws Committee, seeking an advisory opinion (http://lists.cagreens.org/pipermail/bylaws/2006-November/003285.html):

"Can a Region change the length of Coordinating Committee terms from the two years as defined in the bylaws to something else, and in particular, can it do so in the middle of an existing term after a person(s) has been elected to it?"

To this the Bylaws Committee answered:

" No. A region may not shorten the length of a CC term from the two years defined in the bylaw, including in the middle of an existing term. "

In effect, the Bylaws Committee's opinion was that in the middle of the GPLAC's April 2006-2008 Regional Representative term, the GPLAC could not in effect cancel this term and restart a whole new term beginning in November 2008. This then is combined with the Bylaws Committee's earlier opinion that a Regional Representative cannot be removed from office without a resignation or recall, to make the GPLAC's November 11th action in conflict with GPCA Bylaws on two accounts.

Therefore according to the Bylaws Committee opinion as regards the November 11th action, none of the three individuals holding the seats before November 11th - Beatty, Feinstein and Larkins - could be displaced without a recall, and an election to replace them without a recall in the middle of their terms could also not then begin a new term from that point.

Finally, the Bylaws Committee noted that to allow changing the length of an existing term in the middle would require a GPCA bylaws change, and would have to address many questions, which point out the potentially problematic nature of such a change, questions which have never been considered, let alone answered by the GPCA:

It is important to note here that the related issue of whether a person can be removed from office without resignation or recall is not even the primary question for the GPCA as far the GPLAC's November 11th action is concerned. 

If Regions were able to change the length of an existing term (even if it were in order to change the existing beginning/ending dates to new ones), how often could they do so? An unlimited number of times? One time with each new County Council? Something else?

If Regions were able to change the length of an existing term, how would such a process be differentiated from a recall? 

If Regions were able to change the length of an existing term, would there be standards for allowing a Region to do so? Under what voting conditions could it occur - a simple majority, 2/3, 80%? Could it occur after the term began and a new person was already occupying the seats? Could it occur only before a new term began?

It's interesting to note two additional occurrences after the November 11th GPLAC action. First, the GPLAC considered electing alternates to the Coordinating Committee on February 25th, and this time did not do so at a 'regional meeting', but returned to the GPLAC's historical practice (since 1992) of having only County Councilmembers vote. This suggests that the November 11th 'regional meeting' was indeed questionable at best under GPLAC Bylaws.

Second, there is a GPCA bylaws change proposed from the Silicon Valley region that would allow regions to replace Regional Representatives without resignation or recall, thus bypassing the 2/3 threshold. The presence of this proposal suggests that the Bylaws Committee's opinion that current GPCA Bylaws do not allow sitting members to be replaced without resignation or recall is correct, and hence was in place to apply to Beatty, Feinstein and Larkins, meaning the September 17th and November 11th actions regarding them were not valid.

In order for the attempt to "unseat" existing, participating members of the CC in the middle of their terms (after the Coordinating Committee has received minutes of their elections which showed who voted and whether quorum was reached), AND as the default position is that Beatty, Feinstein and Larkins were elected and assumed office under GPCA and GPLAC Bylaws, THEREFORE to succeed in "unseating" these members, it is necessary for a bylaws interpretation to be made that would remove them from office, under the September 17th and/or November 11th GPLAC actions (regarding Feinstein) and the November 11th GPLAC actions (regarding Beatty and Larkins).

ATTACHMENT: Bylaws Committee opinion, January 31st, 2006 http://www.cagreens.org/bylaws/interpretations/01_31_07_retro_recall_null_change.pdf