June 15, 2011.
As most people know, on May 24, 2011, Judge O. Peter Sherwood, Supreme Court of the State of New York, New York County, dismissed the lawsuit seeking to challenge the June 2010 Board election results. The Petitioners had argued that the manner in which the election was conducted cast serious doubt on the ultimate vote count. This dismissal was based on a technicality, as explained below. Efforts by the Board leadership to pass this decision off as a vindication of their conduct of the 2010 election, particularly the Board leadership’s refusal to permit the Election Inspectors to perform their lawful function of overseeing the ballot count to ensure fairness, are simply wrong.
On the other hand, when the Board President invokes the rule of law, as she did at the “Meet and Greet” last night, as grounds to give substantive significance to the Court’s decision, it is remarkable that she omits to mention the most important news in Judge Sherwood’s decision
— that regardless of the outcome of the case, the law actually requires the Corporation to provide not only to Election Inspectors but to any shareholder of record access to the ballots and other election materials.
In crystal-clear language the Board leadership and its legal counsel can only have gagged on, the Court stated on page 11:
“Petitioners…sought the voting records of the election, including but not limited to ballots, proxies, sign-in sheets, tabulation sheets, handwritten and typed notes, and email correspondence with the board of directors, managing agent, and respondents. As a general rule, election records constitute corporate records, and therefore are subject to the right of inspection by a shareholder in accordance with the provisions of BCL [NY Business Corporations Law] 626(b) and (d).”
This – in a word, transparency – is what the lawsuit was about.
The Board leadership’s professed concerns about voter confidentiality, by the way, look extremely disingenuous, when one remembers that performance by the Election Inspectors of their lawful functions has never before been questioned in prior years’ elections, nor has it ever resulted in any discomfort or problem for any participant in the election process.
In our case, the Board leadership contested the right of the Petitioners to get a hearing on the merits of their Complaint on the ground that while the Petitioners had formally served the Complaint upon each of the Board members, they had omitted to serve the “Corporation” as such. There was no question, of course, that the “Corporation” – which is incarnated by the Board – had full and instant actual notice of the proceeding, and, indeed, the “Corporation” proved as much by distributing an extraordinary flyer the next day to every unit advising of the lawsuit and identifying the Petitioners by name. (How many of the other myriad legal disputes between the Corporation and shareholders have they seen fit to reveal, including the $75,000 + vendetta against Bob Peterson for having the electrician place his sub-meter contraption four inches from where Douglas Elliman thought appropriate? Note that the Board leadership has shown no basis to conclude that any harm or prejudice whatsoever resulted from this placement of the box, which was installed by the same electrician as installed everyone else’s sub-meter.)
Pursuant to Judge Sherwood’s guidance, I have now submitted a formal request for access to the 2010 election records, under BCL Section 624. A copy of that letter, with more explanation of the issues involved, and a copy of the Court’s decision, are attached to this posting.
Will the Board leadership continue to conduct its operations under a veil of secrecy? We shall see.
PLEASE DO NOT LET YOUR VOTE GO TO WASTE. VOTE FOR CHANGE.