Friends, In the most recent issue of the MOU newsletter (July 2004), Jerry Bonkoski, MOU president, offers extensive comment on the March 27 MOU board meeting. He speaks of a faction that plotted to and then successfully turned the would-be meeting into a "train wreck".
I was a member of that faction, as was Frani Lowe, MOU vice=3D-president. (Another co-participant will speak for himself, if he chooses to.) In brief, we derailed the meeting because board members appeared to be operating in violation of the state laws under which the MOU was organized and is governed. It seemed to us that demonstrating the board=B9s failure to comply with the most basic of operational requirements might draw its attention to the continuing issue of board reorganization. What we asked was that the president demonstrate that a quorum was present for the March meeting. That is a fair and simple question, quorum being a basic requirement for a legal meeting. There was no quorum. The president did not know what constitutes a legal quorum for a meeting of the board of = a non-profit organization. When asked, the president did not know exactly how many persons serve on the MOU board. When asked, the president could not name all of the persons on the board. The president admitted that all board members (or all possible board members, depending on how you define this) had not been notified of this March meeting. (It seems disingenuous to complain about being caught with your quorum down when you fail in the firs= t place to notify all board members that a meeting is to be held.) Before the March board meeting, Frani Lowe and I pooled $160 and bought one hour of consultation from a lawyer who specializes in non-profit organizations. We discussed in detail our observations of and concerns abou= t the MOU. We wanted to have at least a basic understanding of the laws that govern non-profit organizations. We went to the March board meeting informe= d and guided by her comments. Most disturbing in Mr. Bonkoski=B9s newsletter comments was the following remark, an outright misrepresentation of the truth. He says: "Yet this faction still has not volunteered any suggestions or assistance in resolvin= g the issues that were raised." First, Frani Lowe has been instrumental in arranging for a professional non-profit-organization consultant to come before the MOU board at a specia= l meeting and offer comment and suggestion on the need for reorganization and a method of reorganizing. This would not be happening but for Frani=B9s significant efforts. No one else suggested this or anything like it be done= . This constitutes assistance of the highest order. The MOU board is going to receive professional advice, thanks to Frani Lowe. For my part, on March 31, four days after the so-called train wreck, I sent Mr. Bonkoski a rather long and detailed analysis of what I saw as problems and possible improvements. An edited (for brevity) version of that message appears below. (Anyone wishing to see the complete message can request it from me.) Then, on April 1, I send Mr. Bonkoski another long commentary in the same vein. I am not aware if our third participant also made comment; perhaps he did. In any case, my remarks, to me at least, comprise significant volunteering of suggestions and assistance at resolving the issues raised. I might also suggest that my long letter to MOU members, offered at the time I resigned as vice-president, also contains analysis of problems and suggestions for solutions. Anyone who believes I have been quiet on these issues has not been paying attention. I was accused at the March board meeting of doing all of this for personal gain =AD a power move, to grab control and have the MOU for my very own. No, thank you. Not in this lifetime. Not long ago, I resigned as vice-president of the organization, a position that ordinarily would have led to the presidency had I remained. But, I am old and tired, tired particularly of dealing with people who want to run a public non-profit organization as a private club. I suspect they will not go away. But it would be nice if they would at least agree to follow the laws under which the MOU is organized. Following are the remarks to which I made reference above. Thanks for listening. And the best of luck. Jim Williams --------- REMARKS EXCHANGED WITH JERRY BONKOSKI ON 31 MARCH 04 From: [email protected] Date: Wed, 31 Mar 2004 22:03:29 EST To: [email protected] Subject: Re: response on MOU board situation Jim, thanks for your response to my e-mail. As you have stated, there is much work to be done. I agree that perhaps the number one issue deals with the reorganization of the MOU Board of Directors. I have heard that same statement that the MOU Board of Directors is much too large and needs to be revised downward to a lower number. I am in full agreement to work with Bil= l Henry and Frani on this issue. Do I have your permission to use your replies, unedited of course, to include as background information as I ask board members to help resolve th= e differences? JIM WILLIAMS REPLIES. Yes, most certainly. I would be pleased to have you share my thoughts. I sincerely hope they will help you bring order to the board. If there is other information or assistance I can provide, please let me know. Jim FOLLOWING IS THE REPLY TO WHICH MR. BONKOSKI REFERS. Jerry, Here is my response. I have clipped portions of your questions so you know to what I am referring. I deeply appreciate the chance to offer these comments.=20 BONKOSKI SAID =AD=20 There is a difference of opinion on how MOU Board positions are counted. Your opinion and advice from your lawyer indicated that each possible position is counted as a Board Position when determining a quorum. I have been advised by a lawyer, who has reviewed the MOU Bylaws and Chapter 317A, that the MOU has been counting total board members correctly by counting th= e positions filled, not the total number of potential positions. WILLIAMS=B9 RESPONSE =AD And how do you determine which positions are filled? All of the officers, editors, and committee chair positions are filled. That leaves the affiliat= e positions. I suggest that no one knows the status of most of these. How can you arbitrarily decide that they are unfilled? Under the current circumstance you will have to determine before each meeting how many affiliates are active MOU members and whether or not they have appointed a board rep. Actually, the statutes indicate that a board member continues in that position until replaced or until the position itself is removed by bylaw change. Thus, anyone who last represented an active affiliate continues to be a board member whether they or you know it or not. I believ= e all board positions are always filled if once filled, unless there is a death or resignation. You are right -- this needs to be cleared up. The attorney we consulted, and the staff person at the attorney general's office (with whom I visited again on Monday of this week), and a non-profit consultant at the Wilder Foundation in St. Paul (a non-profit support group= ) all agreed that the present MOU board is far larger and more complexly constructed than good governance requires. I urge you to work with Frani an= d Bill Henry to restructure the board to a much smaller elected group of people.=20 BONKOSKI SAID =AD=20 (You assert that) the MOU has been conducting illegal board meetings for th= e past several years. This assertion is based on the disagreement on how a quorum is determined. Can you please identify to me those specific actions that the MOU Board has taken in the past several years that you feel were not done in the best interest of the MOU? WILLIAMS=B9 RESPONSE =AD The important point is not whether or not the actions taken were in the bes= t interest of the MOU. The actions might need to be revisited for legal reasons. But, the major point is that actions taken outside the bounds of the law open the organization to criticism and challenge. The MOU becomes less in the eyes of its members and the broader community when it acts in ignorance of the law or with an arrogant attitude that seems to say, We are so good we can do exactly as we please. The Fiduciary Responsibility Code published by the attorney general=B9s office is an expression of the intent o= f the law. It points out in simple language what the law expects of board members AND WHAT MOU MEMBERS CAN EXPECT OF BOARD MEMBERS. Accepting a position on the board means you are committed to doing the right thing for the organization in all instances. The disappointing thing here is that so many board members act with apparen= t disregard for the law. Is this because they do not care for the law or do not know about it? As a board member, I would have appreciated an annual review of statutes and codes and guidelines for board members. I would have been a better board member if I had known these things. If, at a special board meeting each January, we had read the Fiduciary Code, reviewed the statutes, reappointed the committee chairs and editors, sent notices to all of the affiliates asking for names, addresses, and phone numbers for their reps -- if we had done these things then we truly would been ready to go through the year in a knowledgeable and productive fashion. I would have been a much better board member if I had had a chance to approach the job from that direction. BONKOSKI SAID =AD=20 The actions taken at the 2003 MOU Annual meeting held on Dec 4, 2003 are (said to be) null and void because there were no minutes taken/published by the secretary. Chapter 317A does not say that a meeting, in order to conduc= t legal business, must keep and publish minutes of that meeting. I am in tota= l agreement that keeping minutes of each meeting is a good practice, and I will assure that the Recording Secretary is at future annual meetings to take minutes. WILLIAMS=B9 RESPONSE =AD I think you need a legal opinion on this from the state. Without the minutes, without the legal documentation of the meeting, how can you establish what happened? I do not believe that individual or collective memory is sufficient. What is more important here is that future action follow the law. Also on the subject of minutes, the statute does require that all minutes for all meetings include the substance of the meeting. This means the discussion, the give and take of the meeting as well as the motions and votes. We do not take such minutes now, do we? BONKOSKI SAID =AD=20 (You, Jim, have stated that) the MOU should not allow a chairperson of a permanent committee to hold that position if they do not intend to attend regular MOU Board meetings (i.e. The current MOURC chair.) Wouldn't it be better to try to rewrite the bylaws so that a permanent committee might hav= e the option of sending an alternate person to represent that committee at th= e Board meeting? WILLIAMS=B9 RESPONSE =AD Rewritng the bylaws will not solve the problem. (State) law requires board members to attend meetings, period. The law does not allow for a proxy or stand-in. This is stated in the Fiduciary Code, which was explained to us a= s an explanation in layman's language of the letter and intent of the law. Th= e MOU cannot write bylaws that supercede state law. The MOU must have board members who fully assume the responsibilities assigned to them by the law. This is one of the main reasons why a board consisting mainly of appointed members presents problems. Some people want to contribute the committee chores but have no interest in the board chores. An elected board would be more likely to avoid these problems since the candidates would present themselves, one assumes, as willing to accept all of the duties and responsibilities that come with board membership. It would be better to rewrite the bylaws to remove the committee chairs from board membership. Our experience has demonstrated that many of our committee chairs care little about board participation in the first place. What a shame to lose someone who wants to work for the MOU just because that person does not wan= t to accept board responsibilities. Create a new system that lets willing volunteers serve as committee chairs without the added duties of a board position. Fully participating as a director, fully performing the duties stated and required in the Fiduciary Code is a big job in itself. Adding committee chores and responsibilities to the work of a board member creates massive workloads for these people. Cut the workload. Let board members do board work and committee chairs to committee work. The MOU will be better off for it. That system also brings more people into the workings of the MOU. That is healthy. That alone is good reason to separate board and committee responsibilities. THE ISSUE OF LIABILITY also needs to be addressed. The attorney with whom w= e visited, and Sharon Phillipson at the attorney general's office with whom I spoke, and a Wilder Foundation staff member (Louise Eidsmoe) with whom I visited on Monday all told me that risk is real for non-profit board members. There is an organization in Washington, DC, that addresses this (Nonprofit Risk Management Center, 1130 Seventeenth Street, NW, Suite 210 | Washington, DC 20036, Phone: 202-785-3891, Fax: 202-296-0349, web site www.nonprofitrisk.org). Management Assistance Programs, a support group for non-profits with offices in St. Paul, has a staff member named Charlie Ravine who focuses his efforts on risk issues. I am told that MAP publishes a booklet explaining risk to board members. I have called Mr. Ravine and asked for a copy. This is important, Jerry, especially because the law assigns greater liability to those board members who do not show due diligence to their duties, i.e. those members who do not attend meetings. This is something that should be discussed and reviewed with ALL board members once a year. Board members deserve to have this information. You (Bonkoski) have without question taken some steps to make the MOU a better and stronger organization. The problem is support for the idea of change, and I believe you might have more of it now than you did before Saturday.=20 If you want to lead, Jerry, begin with the letter of the law. There can be no confidence in a board that puts itself outside or above the law, whether that be through ignorance or arrogance. Ask board members to act ONLY in th= e best interests of the organization. I wish I personally could have seen another way to deliver the message. Saturday was a difficult day for you, and I am sorry for that. But I have spent the past two years trying to make the point that the organization is more important than the people who sit o= n the board. That message was not being well received. Perhaps it is becoming clear now.=20 The MOU has a lot of money now. Many people are watching to see how well th= e MOU handles its new role as a funder with significant resources. Following all of the rules and laws and codes is important in this atmosphere. This i= s no longer about being one of the boys in the club. As Sharon Phillipson (of the attorney general=B9s office) told me, if the MOU wanted a club the founders should have formed a club. Instead, they formed a non-profit corporation, a very complex and heavily governed type of organization. Now, perhaps for the first time, the MOU is being asked to live fully with the obligations it assumed those many years ago. I wish you courage, strength, and good fortune. I too want a friendly MOU devoted to the best interests of the birds. My efforts every day are pointe= d in that direction in a variety of ways. We have no disagreement on the importance of the birds. Jim Williams=20 MOU member E-MAIL MESSAGE SENT TO JERRY BONKOSKI ON APRIL 1, 2004 Jerry, As I read your suggestions, these comments come to mind. Reducing the size of the board is a good idea. An odd number of participant= s would be best for voting purposes. Giving committee chairs voting rights, however, puts us right back where we are at the moment. One who votes is a member of the board, regardless of what title you give them or how they are selected. I think you will find that the statutes define directors as anyon= e who has the responsibility of a director, and voting is such a responsibility. If two dozen people can vote, then two dozen people are on the board. The establishment of quorum also is something to consider. You seem to create two subsets of board membership, elected officers and directors in one group, committee chairs with voting rights in a second group. You use subset one to determine a quorum, then allow subset two to participate with voting rights without being considered when a quorum is established. I don'= t think this would fly legally. But the most important thing is your praise-worthy willingness to work with Bill Henry. He knows far more than I do about this. He will give you good counsel and advice and guide you with information that is non-partisan and seeks to serve the greater good of the MOU. I trust Bill Henry's advice. I hope you will come to see it the same way. I was called again yesterday by Sharon Phillipson from the attorney general's office. She had just completed an in-person visit with another MO= U board member. She said my comments to her essentially were repeated by this person. She offered to this board member the same information she had given me. She said she was optimistic that we would work our problems out and be successful in our effort to have the MOU operate in accordance with laws an= d rules. She encouraged me to call her any time there appeared to be problems or misunderstandings. I told her I shared her confidence and that I would keep in touch. I hope to be able to call her soon and give her a story of your successful efforts to do the right thing. Thanks again.=20 Jim Williams There you have it. If you want to comment to Mr. Bonkoski, his e-mail address is [email protected]. His phone number is 952-440-6956. His mailin= g address is 17255 Woodview Ct. SE, Prior Lake MN 55372. Jim Williams can be reached at [email protected], 952-473-2876. Frani Lowe can be reached at [email protected]. Her postal address is 4717 Elliot Ave., Minneapolis MN 55407.
