OpEd

California triathletes constitute the largest single bloc of USAT annual members of any state in union. In fact, California’s members alone number more than the members in most of the 8 voting regions in which all 50 States are contained. Yet, California is going to be without its incumbent director on the ballot being printed as this is written. The ballot in the Southwest region will consist of one lone candidate.

Close observers of USAT might wonder how that is, considering this bylaw:

XXI, 7(A)(1): Incumbents. Beginning with the annual election of 2005, any incumbent who is still a member in good standing of the federation and who is not subject to term limits shall be placed upon the ballot in the Region in which he or she resides unless he or she specifically declines such nomination. By the date nominations close, incumbent candidates must submit the information required in paragraphs (2)(i),(ii) and (iv) below.

The problem, according to USAT, is the last part of that paragraph. Mike Plumb, the Southwest’s incumbent director, did not submit his platform [one of those items in (2)(i),(ii) and (iv) below] until 42 minutes after the deadline.

Before you jump conclusions, allow me to disabuse you of certain presumptions you might have. I have interviewed all parties in this extensively. I can see no bad motives here. Nobody at USAT appears to want to keep Mr. Plumb off the ballot. On the contrary, this federation seems to be taking extreme care to run a spotlessly clean election. Hence it's going by the latter of the bylaw on this.

My concern stems from the reading and interpretation of this bylaw. It is clear what the first sentence of this bylaw says. Incumbents are to be placed on the ballot. The question is, what is the penalty, or remedy, for an incumbent’s failure to present a platform precisely on time? Does this override and therefore negate the first sentence in the bylaw?

Are there not other remedies that satisfy all elements of this bylaw? Could USAT simply have omitted Mr. Plumb’s platform statement? Should USAT take the extreme measure of violating the first, very clear, unequivocal sentence of this bylaw, in place of other reasonable remedies?

These are the sorts of questions one asks when interpreting bylaws, as well as whether there are other bylaws that speak to this issue. It seems to me relevant that the very beginning of this long, broad Article XXI sets out with a set of exhortations. I think it’s illustrative to lay these out:

Section 1. In General.

(a) Fair Elections. It is intended that federation elections shall be as free from unfair influence and manipulation as is reasonably possible. Until alternative methods have a proven track record, all elections shall be by written ballot.

(b) Election Administrator. The USAT Executive Director shall have overall responsibility for assuring proper implementation of all provisions of USAT’s Bylaws with respect to Board elections, including recall elections.

(c) Independent Outside Auditing Firm. The Executive Director shall be required to retain an independent outside auditing firm which will be responsible for collecting the ballots, counting the votes, and certifying the election results. [more follows]

(d) Participation in Elections. Broad and robust participation in elections is important to the long-term success of the federation. Within the context of these Bylaws, the Board shall take steps to accomplish these goals.

In particular, we ought to consider that last exhortation. Item (d) isn't just pablum. It's a bylaw. Our election administrator knows well that in the absence of our incumbent, we’re left with a one-man race in America's most populist region. I consider this bylaw one that further tips the scale in favoring that unambiguous first sentence of XXI, 7(A)(1), and allowing incumbents names on the ballot.

There are yet more clues available to one who wishes to divine the truest, best course to take from a strictly legal perspective. This very bylaw was part of a member initiative cleaning up USAT’s election procedures. Whether and when such an initiative should be put to a vote of the members was the subject of a tense debate. At issue was whether the ballot should be mailed before or after 30 days following the presentation of the petition. It seemed that "after" was substituted in place of the word "before" through a copying and pasting error. In order to get to the bottom of this, the original author of this bylaw, written in 1992, was ferreted out and the question put to him: "What did you mean to write?"

In like manner, one might’ve thought to inquire of the authors of this bylaw, as to what they meant when they wrote what they wrote. Lew Kidder wrote this bylaw, along with my scant aid. Lew and I were astounded at the remedy USAT chose to "fix" the flaw in Mr. Plumb’s candidacy. In any case, it appears USAT’s view is that the intent of the author is irrelevant. It should also be pointed out that if Lew and I had done our jobs correctly we'd have spelled out in greater detail what the remedy is for non-compliance with the deadlines we laid out.

USAT points out that, "The Board was reminded by e-mail several times... that their platform 'must' be in by midnight July 1." Also, it seemed to impress our national office staff negatively that Mr. Plumb at times expressed some ambivalence toward continued board service. That established, I don’t see how these facts matter in light of the very technical posture our national office is taking.

I do not ascribe to USAT bad motives here. Quite the opposite. Its approach seems pure and straightforward, perhaps to the point of missing the forest for the trees. Considering the historic tendency of USAT to play fast and loose with its bylaws, I do not blame our executive director, Skip Gilbert, one bit for making the call he has made. I don’t agree with his decision, but I applaud his strict attention to bylaw adherence. I would be missing the forest for the trees myself if I did not acknowledge and honor that our federation is managed by a chief executive who runs things by the book.