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February 23, 2007
Atul Rai, a past president of the USACA, comments on why he feels the current process to elect a new constitution is not only unfair, but illegitimate
I have read the clarification by Sheldon Ellis published on Cricinfo and I have also read the proposed draft constitution. As the former president of USACA and also being one of the three individuals who wrote the existing constitution, here are my comments.
1. The draft constitution, Article 8-section3(a) states that for the first electoral cycle, each regional director (which is current incumbent) shall appoint a maximum of four persons to the regional administration. These four individuals - along with the league presidents in the region and the current director included - shall then appoint the representative from the region to the executive board. So, let us assume that region X has five leagues out of which 2 league presidents are friends of the current director, who now has a possible 7 votes (including his own) out of a total of 9.
Therefore, it is very easy for the incumbent to appoint himself to the executive board for another three years.
The elections of the regional administration and other items mentioned in the constitution only are applicable to the next elections, i.e. after three years.
This also applies to the appointment of the executives. The nominating panel (appointed by the incumbents) select the individuals by a process that is poorly defined.
Article XII-Section 3-Subsection i & ii: The nominating panel shall have the following responsibilities:
1) To evaluate prospective candidates for the executive positions 2) Veto any candidate for potential conflict or other problematic background issues.
Under this scenario it is possible that the panel (possibly the current members of the Board with one or two other appointments) can disqualify any nominee that is not to their liking. This is not an election as defined by the Corporate not for profit laws.
2. Article XXIV section iii- states that proposed amendment to the constitution shall be ratified by three-quarters of the members present and eligible to vote. Now this begs the question as to who are eligible vote. The constitution does not clearly define who are the full eligible voting members of the organisation. Let us assume that clubs are full members; unless the clubs provide a proxy to the league president, the constitution as written does not authorize the league president to vote on their behalf. One has to understand that voting on the constitutional amendment is not the same as voting on another resolution at the AGM.
3. Notice of the meeting has to be disseminated to all the members by acceptable means such as US postal mail, email or fax within a reasonable time frame in any non profit organization. Posting the notice on the web site is unacceptable.
4. Complaint procedure, termination or suspension of membership and sanctions: once again it comes down to who are the full members of USACA. If clubs are full members, then in any non-profit organization, the executive Board serve at the pleasure of the membership.
Therefore, the majority members of the organization shall always have the right to reverse the decision of the Board or the Executive that has been appointed to serve them.
This is because there have to be checks and balances in the organisation. In case there is an executive body that conducting the business (making decisions) against the acceptable principles, the membership should have some recourse other than to wait till the next elections.
By the same argument charging members a fee to file a complaint (frivolous or not) is unacceptable even if the fee can be waived by appeal to the executive board for financial hardship. This is in violation of the rights of the membership.
5. Interestingly, I noticed that Mr. Sheldon Ellis has been named as the Arbitrator for the ratification process and he was also on the constitution review committee. That would be a conflict in my opinion. Also, the arbitrator does not write comments on the pros and cons of the draft.
6. Further, I also noticed that several issues that were raised in the open letter to USACA have not been addressed in this clarification and I have copied them as written in the letter:
i) The notice for the constitutional amendment is inadequate as per the existing constitution (it requires 21 working days notice)
ii) The plan is to count only the returned ballots -for Example: if only 10 clubs returned the ballots and seven of them said yes, then the constitution shall be considered as amended. This is unconstitutional since the current constitution requires a 2/3rd majority vote of the member clubs.
iii) Article XVII-Conflict of interest: The present draft states that "If any member of the executive board....has a financial interest in any contract or transaction involving USACA...., such individual shall only disclose such conflict of interest or simply not participate in the evaluation of the contract, business affair or vote. No one should have financial interest in any contract or transaction involving USACA while being part of the USACA executive board. This can also lead to USACA's disqualification of IRS 501(C) 3 non profit status.
This section should have stated that any member of the executives, BODs or any other office bearer shall not have such a conflict of interest, knowingly or otherwise. Anyone found guilty of violating this rule shall be subject to immediate removal from office and further penalties.
iv) Restructuring of the regions: There is no mechanism by which the number of regions can grow. The Appendix C of the draft Constitution calls for three Leagues with at least 8 teams each to be able to form a region. This is in direct conflict with Article III Section 1 which calls for at least fifteen (15) members. There is no upper limit on the number of leagues in a region before which it needs to break into more regions such as the case with New York
In the Central West for example, there are currently four leagues but two of them do not have the requisite minimum number of 8 teams... Does this mean the Leagues in Central West are going to be voting to de recognize their own region? If so where will they belong? The Constitution does not address this.
7. Significantly, ICC wrote a letter to USACA executive body back in March of 2006 stating that the sanctions imposed on USACA shall be lifted subject to certain conditions. One of the most important conditions listed in the letter is as follows:
That - in addition to any auditor role within the USACA Constitution - the Interim USACA Board agree on a third-party to oversee the next election of the USACA Board of Directors and that the ruling of this third-party on any related matter be binding.
Unfortunately, the executives failed to follow the ICC directive.
Therefore, I believe that it is time for the cricket loving people of this country to speak up and act now before it is too late. I believe that this entire process that USACA has adopted is unconstitutional and also against the directive of the ICC as well as the courts. There is no independent monitor for this process. Therefore, this process is illegitimate.
Atul Rai is a past president of the United States. He has been on the Board of Southern California Cricket Association (SCCA) since leaving his post with USACA
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