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Election Complaint on Berry, Dees, and Herz 'Don't vote for me Ballot Statements'; Sierra Club Inspectors allow mockery to continueTO: Sierra Club Inspectors of Elections I read with interest the 2004-4 ruling (Complaint by George Emmons on whether the candidacies of Phillip Berry, Morris Dees, and Barbara Herz are legitimate). I had planned to file a complaint on the same subject. I disagree with your ruling. I will provide new arguments based on our Bylaws that were not mentioned or addressed in your ruling. Your ruling indicated George Emmons stated, "I, a complaining member of Sierra Club, request that the Inspectors of Election make a ruling, advisory or otherwise, in regard to the legitimacy of the candidacies of Phillip Berry, who states in the Ballot Statement which he has provided to the Ballot Statement Review Committee (BSRC), 'I'm NOT asking for your vote. Rather, vote for only Nominating Committee candidates...; Morris Dees, who states in the Ballot Statement which he has provided to BSRC, 'I am not asking that you vote for me.'; Barbara Herz, who states in the Ballot Statement which she has provided to BSRC, '...I thank those who've petitioned me to run but think the wisest course in this election is to support Nominating Committee-endorsed candidates, not divide our votes.'" Dees's statement is online. At the end of my complaint I have pasted an email message where the strategy to make a mockery of our elections is discussed. This message states: "Dees and Herz have agreed to support Nominating Committee candidates for the Board, to use their ballot statements to expose the outside stealth petition candidates, and then to withdraw from the race and decline votes for themselves." First I want to comment on how bad for the Club their actions are. I hope the Inspectors will consider what kind of precedent allowing this mockery of our elections will have on future elections. Do we want fair and informative elections or do we want nasty mudslinging? This is an unprecedented attack on fair and informative elections. If the Inspectors allow this, it will be the norm. The Inspectors need to think of the consequences of their ruling when they address anything that is unclear or where a fair ruling could go either way. Do we want Sierra Club elections where the members must sort through dozens of "don't vote for me" statements to figure out which candidates are legitimate? People are expressing concern about low voter turnout. I cannot think of a better way to lower turnout than to have ballots full of mudslinging "don't vote" for me statements. If the Inspectors allow this violation of our Bylaws, this will be the new standard for elections. Since it is our Bylaws that prohibit this, if the Inspectors rule the Bylaws don't mean what they say, this type of mud slinging would not be able to be stopped with a Standing Rule. Furthermore, it would not be fair as what is good for the goose is good for the gander. For the record, I co-founded John Muir Sierrans many years ago. Many times we had discussions of running someone who would say "don't vote for me" and tell what the old guard was up to. We could have easily got someone on the ballot to do this. In those days, Club leadership was doing everything in their power to prevent fair and informative elections. But we always came to the conclusion that doing this would cross a line that should not be crossed. The Inspector's ruling did not address the requirements of Bylaw 5.4 as this issue was not raised. So before addressing the reasons in the Inspector's ruling, I will point out the violations of the Bylaws. Bylaw 5.4 states, "All nominees must be members of the Club in good standing and must agree to accept the nomination." Their statements asking members not to vote for them are prima facie evidence that they have not accepted the nomination. I am unsure if they have submitted something to the Club saying they accept the nomination. If they did, I would argue it was submitted in bad faith and it was fraudulently submitted. The email at the end of ths message supports this. Actions speak louder than words. Since their statements indicate they have not accepted the nomination, they must be removed from the ballot. Bylaw 5.4 also states, "The Nominating Committee shall request the nominees individually to submit a statement on behalf of their candidacy no later than two (2) weeks after the close of nominations." What Berry, Dees, and Herz have submitted are not "a statement on behalf of their candidacy." They are statements for NomCom candidates. A statement on behalf of their candidacy would have to be reasons why members should vote for them. These statements are clearly on behalf of other (i.e., NomCom) candidates. The attached email demonstrates this was the plan to begin with. Therefore, if the Inspectors reject my argument that they are not valid candidates, the Inspectors should rule that their statements are not "a statement on behalf of their candidacy." Additionally, this year's NomCom standards for the ballot statement state, "(6) a personal statement supporting your candidacy, including description of other relevant background." What Berry, Dees, and Herz have submitted are not a "statement supporting [their] candidacy." It is a statement opposing their own candidacy and supporting NomCom candidates. Therefore, it cannot be allowed on the ballot. Bylaw 5.6 states, "If no statement has been received from a nominee, it shall be so indicated, but the nominee's name shall remain on the ballot." Therefore, the remedy to this violation would be to just print their name on the ballot. The Inspectors acknowledged their legal responsibility to insure "fairness to all members." A California court has declared that the members of a nonprofit public benefit corporation (such as the Sierra Club), as well as the public in general, have an "important right" to "fair and reasonable election procedures." Ferry v. San Diego Museum of Art, 225 Cal.Rptr.258, 265 (Cal.App. 4 Dist. 1986). The ruling indicates Mr. Emmons challenged the actions based on fairness to the Sierra Club as an entity. CA law does not provide fairness to the corporation, it provides fairness to "all members." Therefore, I agree that this argument should have been rejected. The Inspectors need to address fairness to all members starting with the petition candidates being attacked and not supported by these statements. It is fundamentally unfair to the petition candidates to have space that is supposed to be used for the candidacy of these members to be used to support NomCom candidates. That is fundamentally unfair to the other candidates. If this is allowed, this will open the flood gates. This will be the norm and members will have to go searching through numerous ballot statements trying to figure out who is really running. We could end up with more fake candidates than real candidates. It takes so long as it is to read the statements. This is not fair to the members. Respectfully submitted, Jim Bensman, February, 2004
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