Board in-fighting continues

USACA elections stalled by procedural deadlock

Deb K Das

February 11, 2005

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The 2005 elections of the USA Cricket Association (USACA), which had been limping along slowly, appear to be nearly dead in the water. It may take either a miracle or a direct intervention from the International Cricket Council to get them moving again.

The problems have developed around a procedure called the "background check", which is not mentioned in the USACA constitution but was superimposed on the electoral process by the USACA executive some time ago.

The purpose of the background check, it seems, is to make sure all nominees for USACA positions are of sound moral character, not convicted of any felonies or misdemeanours, and have otherwise conducted themselves responsibly in the public arena. All nominees are required to fill up a form, and mail it along with a $15 fee to USACA by a specified deadline. These forms are reviewed and approved, and the results of the review are passed on to the independent auditor to let him know which nominees had passed the background check and were entitled to a place on the ballot.

There had already been rumblings from some candidates who thought that the form was too intrusive, and could conceivably violate their civil rights. Also, since background checks are not mentioned in the USACA constitution, it was not clear who should be conducting them, and what authority he or she might have over the electoral process. The USACA constitution gives an independent auditor the sole authority to conduct the elections; their only communications are with the USACA secretary until the election is completed. So how, when and where should background checks enter the election process? The question has never been asked, let alone answered.

Gladstone Dainty, the USACA's president, solved part of the problem by naming Selwyn Caesar, the association's treasurer, to conduct the background checks. Just as he was responsible for certifying the eligibility of member clubs by whether they had paid their dues in a timely fashion or not, he could track when the nominees' forms were submitted along with their fees. But was Caesar also supposed to decide which nominees passed their background checks? Should an officer whose main responsibility was transactional rather than discretionary, exercise such a quasi-judicial function? These questions appear not to have been raised, let alone resolved.

Meanwhile, Bobby Refaie, the USACA's secretary, had other things to think about. The process of getting the 2005 elections going had been excruciatingly slow. USACA officers concerned met inquiries about matters such as updated lists of paid-up members, or current mailing addresses, with recalcitrance and foot-dragging. The appointment of an independent auditor, a crucial stage in the election process, took so long that the election process was delayed by more than a month. That the process did get under way at all was because Refaie, invoking his constitutional authority, succeeded in getting the official notices for member registration and nomination ballots published under his own signature and out before the US cricketing public. Without his determination, it is unlikely that the 2005 elections would even be taking place.

Just when it seemed the elections were entering their final lap, a major monkey-wrench was lobbed into the proceedings, in the form of memos written by Caesar and Dainty.

Before this final scene, a feud of sorts had already developed between Caesar and Refaie. Caesar had been insisting on his rights as treasurer to review and certify the membership lists, and Refaie had countered this by pointing out it was his constitutional right to communicate with the independent auditor on what membership lists he was to use for conducting the elections. An official membership list was published, but it contained several puzzling omissions and errors -- which Caesar chose not to explain - and Refaie was in no position to account for.

Refaie evidently received the list of nominees from the independent auditor, and communicated it to the other USACA officers. He then proceeded to streamline the list, dropping the names of those who had decided not to run after all, and published this on the USACA website.

At this point, Caesar published his own final list of nominees, based on his background check of nominees that he had been conducting. The list was different in two respects from the one published by Refaie. First, Caesar retained the names dropped by Refaie -- it appears that Caesar had not been informed that some of the nominees had dropped out. Second, Caesar excluded several nominees who had apparently not submitted their forms or paid their background-check fees on time.

This was followed in short order by an e-mail from Dainty to the independent auditor -- an unusual step, because no-one except the secretary is supposed to communicate to the auditor while the election process is under way. Dainty pointedly referred to the exclusions that had been noted by Caesar, and wanted to make sure the auditor got the message.

So why would the differences between the two lists be so important? Here is why. If the Dainty/Caesar list of nominees prevails, the 2005 USACA elections are already over. Five of the ten positions on the board would be uncontested; and two or three more would probably be won by supporters of the present regime. Dainty, the current president, would face clear sailing in his position for at least three years, unhampered by any problems of accountability.

The Refaie list of nominees, on the other hand, would give democracy at least a fighting chance. There would be several contested elections, and the final tally could be 6-4 or 5-5 between the factions involved. Even if Dainty's supporters prevailed, they would have learned a lesson of sorts, and this might incline them more towards reform.

In this connection, an important distinction needs to be drawn between a member club not paying its yearly dues on time, and a nominee not paying his $15 fee for USACA to conduct his background check.

When a member club fails to pay its yearly dues, it is failing to meet its obligations to USACA and US cricket. It cannot, therefore, expect to participate in the election of officers to an organisation it had shown no inclination to pay for. This is basic to all organisations which depend on member subscriptions, and denying voting rights in such a case is perfectly proper and legal.

Failing to pay a required fee for having a background check conducted on oneself is a horse of another colour. The background check is, after all, the responsibility of the organisation, not the candidate; it is the organisation which suffers if seriously unqualified persons are allowed to run. One could even argue that USACA, not the candidates, should be paying to have backgrounds checked. And even if candidates agree to pay, it is not clear that their candidacies should be declared null and void because their background-check fees were not paid on time. At least, the election should be allowed to proceed, and any problems with backgrounds could be resolved before an appropriate tribunal before the elections are finally certified.

Refaie has taken the view that the background-check procedure is a not-so-subtle device for keeping the USACA leadership in power. It has no basis in the USACA constitution, and has been used only to keep out those who are not prepared to be "team players", to use one of Dainty's more familiar statements. Certainly our analysis of the 2005 USACA elections would tend to support Refaie's point of view; if the background-check constraints are allowed to prevail, there will be no real election.

Under the circumstances, Refaie has taken a bold and unusual step. On February 10, using his constitutional authority as USACA secretary, he instructed the independent auditor to cease all activities related to the USACA 2005 elections immediately.

The auditor is to resume his activities only when advised by the secretary to do so. So, as of now, the 2005 elections are dead. And no-one knows when, if ever, they will be revived.

Meanwhile, Refaie has kept the ICC informed as to the state of affairs. Perhaps, given the content of Ehsan Mani and Malcolm Speed's letter to Dainty, they might wish to intervene before the situation gets entirely out of hand -- whether they will do so is a question only the ICC can answer. US cricketers watch and pray, and hope for a miracle -- one that may or may not occur.

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