And around we go.......,

 Because the maker of the motion to amend my motion has now withdrew that motion, I will reinstate and modify my original motion and resubmit it, as all of Gary and Chuck's work to find a peaceful way out of this has failed.  Motion below and in red. 

    I leave it to you guys and especially Chuck as acting Chair. 

 Harvey

 Motion: President Andrew Scherman be sanctioned (By-laws Art: V.6.) by the FCA Board.

•  In response to our President's recent activities regarding proxy forms, Andrew Scherman shall be censured and expelled from the Board. Because the President's conduct is so flagrant, and this would be his third expulsion, he will be expelled permanently and not be permitted to be a candidate for any office on the FCA Board in the future.
•  The electorate for the 2009 FCA elections will be frozen as of today, May  26, 2009.

NOTE: this motion requires a 2/3 majority and is a single vote.

--- Original Message -----

From: Chuck-FCA@centercounter.com

To: VTBS1980@gmail.com ; rsforman@mail.usf.edu ; Kevin Ledzian ; jon@bocachess.com ; joedajew@yahoo.com ; ikefalcon@gmail.com ; Harvey Lerman ; Gilfca@gmail.com ; elprez_spcc@netzero.net ; fca-secy ; Doctormate@aol.com ; ddillinger@aol.com ; Chessinschools@aol.com ; Bjtnwjt@aol.com

Cc: rp@lawpm.com

Sent: Sunday, May 31, 2009 7:52 PM

Subject: The Motion PASSES!

I vote yes.

For:  Chuck, Kevin, Harvey, Jon, Steve, Willard, Paul, Gil, Daren

Against:  Andrew, Mike, Gary

Final tally - 9-3 in favor of the motion.

Illegal votes from Rob and Joseph were discarded as they are not Board members.

Let me explain:

According to our Bylaws, the current version (in this case, version 10) of Roberts Rules will be used for all meetings.  As Andrew has stated, we are always in session.

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Article IX – Procedure

Section 1. Meeting Procedure: The most current edition of Robert’s Rules of Order Revised shall be used at all meetings of the Membership, the Board of Directors, and the Scholastics Committee. [Amended September, 1999 to cover all meetings]

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What does Roberts Rules 10 have to say about proxies?

Page 414, 45:18-20: "Proxy voting is not permitted in ordinary deliberative assemblies unless the laws of the state in which the society is incorportated, require it, or the charter or the bylaws or the organization provide for it."

The reasoning Andrew used for ruling the motion out of order in September/October of last year can be found at http://snipurl.com/3qcdm:

(761) (2) A member who is entitled to vote may vote in person or, unless the articles of incorporation or the bylaws otherwise provide, may vote by proxy executed in writing by the member or by his or her duly authorized attorney in fact.

By remaining silent on the topic of proxies, our Bylaws defer to Robert's Rules, which say:

p414-415 32-35: ""If the law under which an organization is incorporated allows proxy voting to be prohibited by a provision of the bylaws, the adoption of this book as parliamentary authority by prescription in the bylaws should be treated as sufficient provision to accomplish that result."  This meets the requirements of the referenced statute ((759) 617.0721  Voting by members.-- ).  Therefore the proxies were always illegal and Andrew's "ruling" was out of order and illegal.

Additionally, as Mike astutely pointed out when supporting Andrew's ruling, the Board may not do anything that is illegal, and even with unanimous support, the result is null and void. This is supported in Robert's Rules as follows:

p332 15-20: "Motions that conflict with the corporate charter, constitution, or bylaws of a society, or with procedural rules prescribed by national, state, or local laws, are out of order, and if any motion of this kind is adopted, it is null and void." By extension, this applies to the proxy situation, as it has been proven to be illegal.

By virtue of what Robert's Rules offers on pages 414-415, and in combination with p332, which declares illegal activity by the Board null and void, as well as the successful vote in the September/October time frame to reverse the proxies, the election of 2008 reverts back to the counts minus the illegal proxy votes, with Chuck Hall defeating Joseph Virgin for the Central FL VP position.

Rob Forman is a special case. He has argued several months ago (I believe during one of the votes to reverse the proxy) that if I win vs. Joseph, then he runs unopposed and wins.  There are more than a couple flaws.  One is that each case must be taken individually.  In his contest for At Large vs. Chuck Hall, he lost the hand count by a margin of greater than 3 to 1 and was only "elected" by means of the proxies.  The second flaw is the deterrent effect the illegal proxies had on anyone else who would have declared their candicacy and run against Rob.  In view of these two facts and scenarios, Rob may not profit from the illegal proxies.  Rob Forman may elect to run for any of the open positions available for which they qualify this year.

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In conclusion, I would like to make a personal observation:

This didn't have to happen. The majority was willing to swallow the bitter pill from last year's election and move on.  Andrew was not.  To be perfectly fair, Daren could not be reined in either.  The question was why we didn't remove Daren a month or two ago, and the answer was that the majority could not see the justice in removing Daren and not removing Andrew.  Many of us in the majority were often shocked by Daren's outbursts, and several of us told him so, either in email or by phone.  In summary, Daren's attacks were improper.

What Andrew did was directly relevant to FCA business in that he repeatedly attempted to rig elections using proxies for what can only be assumed as a power grab or takeover bid. Even after the bylaw changes which placed no doubt as to the FCA's stance on proxies, he was caught in the act of circulating a new one.  His response:  a "mistake".  Hanging your queen is a mistake, this was a premeditated act with knowledge this was directly contrary to the Bylaws.  I don't know about the minority, but I take election fraud seriously.

In any case, several compromises were offered in order to avoid this situation, but they were all rejected by the majority. The majority was forced to take this action as a result, although we would rather have simply provided a sanction for Andrew and safeguarded the electorate for this year so we could have an honest election.

Thank you,

Chuck