RAA Safety-Training-Compliance Coordinator appointed

[turboplanner]

Don't be too convinced of Turbos argument without having another read of those clauses of the Constitution. I am not a lawyer but I think the plain English reading of those clauses could never get you to Turbo's position.

Yes by all means please read the clause I quoted, thoroughly.

 

 

[turboplanner]

nomadpete,Don't be too convinced of Turbos argument without having another read of those clauses of the Constitution. I am not a lawyer but I think the plain English reading of those clauses could never get you to Turbo's position.

 

For example, the Executive is defined as a group of three people who can act "in concert" not individually as servants of the Board.

Just in case I'd made a mistake, I had another look; the Constitution does begin to define the Executive in another place:

 

On Page 27, Part I - Preliminary 1. Interpretation, "Executive" is listed as "President, Secretary and Treasurer as defined in Part III, Section 11 (iv)", which I quoted verbatim.

 

NOWHERE there does it say what Alfa Romeo is telling you - (that it is defined as a group of three people who can act "in concert", not individually as servants of the Board)

 

Rather than make up stuff, it would be more appropriate if Alfa explained to all the members why he didn't have this clause deleted.

 

 

[AlfaRomeo]

. . . I’d like to point out that Ed also is one of the new members, not one of those who have habitually frustrated the members.

Ed is coming to the end of his first two-year term. He has been an avid supporter of the former CEO and of the President that he succeeded. He can't be compared to people like Jim Tatlock who, despite severe bullying, stuck to his guns in objecting to the poor governance and cult secrecy he encountered.

 

To be fair, Ed's frankness has been breathtakingly refreshing and his zeal to get RA-Aus onto a proper business footing is to be greatly admired. With the Myles appointment though he has overstepped the mark by the biggest margin possible. This was an awful way of going about something that may well have been worth doing.

 

Whether we could have brought in a highly skilled, well resourced and expensive consultant for 12 months to get things in the compliance area back on track and to initiate training programs as a part of the roll out of the SMS to all of RA-Aus, we will never know. Now we are effectively committed to a permanent STCC who will cost, my estimate, about $1 million every five years - forever! Compliance is an integral issue for the Technical and Operations Managers. It is what they do. They could have been assisted by a consultant to get more done and more professionally for a period and then gone on with it themselves. A consultant could have been brought back in to audit compliance every two or three years, much the same as we have financial auditors come in every year.

 

. . . Among the posts are some referring to “directors” and other aspects related to a Board of Directors. These are not relevant because RAA is not a Pty Ltd company.

You will find that they have very similar responsibilities as directors and while the Board is, technically, a "Committee of Management" under the Act, RA-Aus has chosen that they be referred to as the BOARD. Alan, get over it - that's what they are. And that's what RA-Aus needs them to be. We have an employed management and we need the Board to be a Board.

 

So let’s first address the issue of whether Ed acted outside his powers . . .Recreational Aviation Australia, Inc. Constitution, Part III, II, (iv) Powers of the Board

 

"The President, Secretary and Treasurer shall form the Executive of the Association and shall be responsible for all matters relating to the affairs of the Association whenever the Board is not meeting and, subject to any decisions of the Board, shall make all the decisions necessary in relation to the Association's business and shall act in the case of emergency.”

 

The clause does not specify whether decisions must be made collectively or severally, so that is optional.

In fact it does. The Executive is formed by the President, Secretary and Treasurer. It is not formed by any one of them acting alone.

 

It does not specify any form of voting, so that is optional. Therefore it gives any Executive member, according to line two the right to make decisions on all matters between board meetings.

Why would it not be reasonable to think that it would be by simple majority? It does not require unanimous voting so a reasonable person would expect voting of the Executive to be democratic and by majority decision.

 

Line four gives him more power; it means that with the exception of decisions made by the board on some matters, the Executive is empowered to make ALL the decisions.

Like much of our Constitution, this could be better written. However, it makes it clear that the Executive is the servant of the Board. It says the Executive can not make decisions that are contrary to Board decisions. I don't think you would have to look far to find where the Board had decided not to do what Ed did. That is a straight conflict with a Board decision.

 

And finally in line six is a vague authority to act in an emergency.

So Ed has not contravened the constitution, as so many of you are arguing, and there is no requirement for an emergency before Ed can act, as others of you are arguing.

There was no emergency. The definition of an emergency is the ordinary Oxford English definition. There is no need to define a word that is in common use. This matter had been under consideration by the Board for some time. Ed says he was under pressure from CASA to act but CASA would never apply undue, inappropriate pressure and require Ed to act in contravention of good governance. They would not have required and did not require him to make a decision without Board support.

 

A Constitution Reform Committee was formed, but the plot was lost and these changes were not made.

Ed voted for the disbanding of the Constitution Review Committee because the leader of the Committee was no longer a Board Member. He voted also for its reinstatement with a Board Member as its chair, Myles Breitkreutz. What happens now? do we see a rushed move to shut down the CRC again?

 

This is a very short term decision – just out to September it’s not the same as Tizzard’s job and the Myles appointment is for about 90 days, by which there will either be a policy on the ground or he will be toast.

This position can not just get dropped in September. We now have this position permanently. Can you imagine how CASA would feel if we were to go back to them and say we had this role for three months but now we think we can do without it?

In summary, Ed has breached the Constitution, the Deed of Agreement (failure of good governance) and has exposed himself to substantial financial risk if any payment is made to Myles. Truly, this could have been done so much better if as much though went into it as aggression.

 

 

[winsor68]

Not a legal eagle... but I read "President, Secretary and Treasurer" as defining this as a group...

 

If I said... "Roger, James and Peter will be over to visit you tomorrow" one wouldn't assume that either Roger, James or Peter will be visiting... I in my non-legal sense would assume all three...

 

 

[AlfaRomeo]

Just in case I'd made a mistake, I had another look; the Constitution does begin to define the Executive in another place:On Page 27, Part I - Preliminary 1. Interpretation, "Executive" is listed as "President, Secretary and Treasurer as defined in Part III, Section 11 (iv)", which I quoted verbatim.

 

NOWHERE there does it say what Alfa Romeo is telling you - (that it is defined as a group of three people who can act "in concert", not individually as servants of the Board)

In the Rule you refer to TP, it says the Executive is formed by those three roles. Not by one or two but by all three. Without all three it is not the Executive.

 

 

[turboplanner]

Alpha, I made a post; I'm not going to be drawn into an interminable word by word wrangle. You had your chances to fix the Constitution, you had your chances to identify any misspending shown in annual reports, you had your chances to sort out any board manager issues at a General meeting and you had a chance to sack the board at the Natfly meeting. I've reached my boredom limit.

 

 

[winsor68]

Sorry Alan... I think this could get messy...

 

From an online legal dictionary...

 

"and conj. this little word is important in law, particularly when compared to or. Most commonly it determines if one or both owners have to sign documents. Example: when an automobile registration reads that the title is for Barney and Sarah Oldfield, then both must sign off upon sale, but if it says "or" then only one will have to sign; if Barney dies then the title is automatically in Sarah if it reads "or," but not if "and.""

 

 

[Head in the clouds]

Just in case I'd made a mistake, I had another look; the Constitution does begin to define the Executive in another place:On Page 27, Part I - Preliminary 1. Interpretation, "Executive" is listed as "President, Secretary and Treasurer as defined in Part III, Section 11 (iv)", which I quoted verbatim.

 

NOWHERE there does it say what Alfa Romeo is telling you - (that it is defined as a group of three people who can act "in concert", not individually as servants of the Board)

 

Rather than make up stuff, it would be more appropriate if Alfa explained to all the members why he didn't have this clause deleted.

I don't think whether the Exec technically amounts to each of them individually or all of them collectively is really the issue.

 

Firstly, I don't believe Ed acted on his own because he'd read the fine print and thought he'd use a loophole, I think he just thought he had the power to do whatever he thought was right because he'd insisted on having "the full support of the Board". And that was just plain and simply wrong and naiive, most particularly since he should have been very much on his guard following the assurances given at the EGM.

 

Secondly, having made a pretty questionable blunder, to then go on and give the job with all its associated costs, to a buddy, without it being discussed or advertised doesn't seem to me to be the most honest way to proceed. Did Ed really think no-one would be just a little bit peeved?

 

As for the Constitution, it certainly appears that it does need a Review because if it's full of loopholes it's as good as useless. I don't believe Ed planned to use that though, because if he had, and after his earlier assurances, he would appear even more reckless than he does now.

 

 

[turboplanner]

Not a legal eagle... but I read "President, Secretary and Treasurer" as defining this as a group...If I said... "Roger, James and Peter will be over to visit you tomorrow" one wouldn't assume that either Roger, James or Peter will be visiting... I in my non-legal sense would assume all three...

Win, a Constitution normally spells out how people will exercise their powers, so you'll find in the Constitution what constitutes a quorum at which decisions can be made, whether voting is required and how that voting will be done. I'm talking generally but you'll find that in the RAA Constitution. Where you have a sub group, such as a committee or executive. there will be a similar quorum/voting requirement/voting method.

 

That isn't in the RAA Constitution. It seems to me that the Executive clause was inserted later, but the people who did it just didn't know what they were doing.

 

As for the word "and" , also mentioned in your post #207 Associations are usually based on plain English.

 

 

[Guest airsick]

In plain English it still says 'and'. It has a completely different meaning to 'or'. In the context of the constitution it clearly says that the president, secretary and treasurer shall be responsible for the operations. It does NOT say that the president, treasurer or secretary shall be responsible. We could argue that there is an interpretation issue here but I could equally argue that it has been has been specifically interpreted to defend a particular action.

 

 

[turboplanner]

Part III 11 (iv) says " The President, Secretary and Treasurer shall form the Executive...". In other words the Executive consists of the President, Secretary and Treasurer.

 

the word form is descriptive rather than a verb.

 

The clause goes on: "The President, Secretary and Treasurer shall form the Executive and shall be responsible for all matters etc"

 

So the three form the Executive and also are responsible for all matters and what comes after.

 

To go where you and Win are going, it would have to read ......shall form the Executive and the Executive shall be responsible etc. this would give the clause a collective binding and require consensus action by the members together.

 

However, the clause was not written that way, and in any case the procedures are missing.

 

 

[Guest Andys@coffs]

Turbs

 

If we use the reasonable man concept, there is no way that a term that introduces a group as the executive would then for the purposes of the rest of the clause abandon it completely.

 

The constitution term may not specify it exactly but I'm sure if it was ever tested in court that the correct interpretation would be that decisions contemplated were contemplated as a group of 3 not individually.

 

Now....for a complete change of pace......Have people noticed that the election statements are up on the RAAus website within the members section.

 

Despite complaining about uncontested elections, we have the situation where of the states of SA, VIC, SQLD and WA where there are only enough nominations to fill the empty positions.

 

However in NSW for a single position current held by Dave Caban, we have 5 nominations.

 

What can people tell us about the new contenders :-

 

Greg Doyle

 

Michael Monck

 

Stephen Schmidt

 

Barry Wrenford

 

Other than Michael I personally don't know of them. I do know Michael and have been involved with him and others (2 of which are the SQLD nominee's) in calling for the Feb 9th EGM. I will be voting 1 for Michael but need to know how to fill in 2 to 4....

 

Dave Caban has an advantage as incumbent and with the way that RAAus members traditionally vote. Its only about half of us that vote that fill in all the available options. Those who don't number all candidates 1 through 5 and who vote for less popular candidates as a higher priority may well never actually have a part to play in choosing the final candidate.

 

Andy

 

 

[turboplanner]

TurbsIf we use the reasonable man concept, there is no way that a term that introduces a group as the executive would then for the purposes of the rest of the clause abandon it completely.

 

The constitution term may not specify it exactly but I'm sure if it was ever tested in court that the correct interpretation would be that decisions contemplated were contemplated as a group of 3 not individually.

If you are going to vote on a no confidence motion against your President because he's acted illegally, acted outside the Constitution, contravened the Constitution, then its incimbent upon the attacker (s) themselves to follow the Constitution meticulously.

 

So we can't use the reasonable man concept and pluck some words out and link them together and say "Hey, he meets the definition!" Either he was complying with the words that are there, and particular the procedures that are spelled out or he wasn't.

 

In this case, as I've pointed out, the procedures are missing, and you can't make up your own based on what a person might think.

 

You more than anyone know what's waiting for us round the corner if we don't get our act together. That isn't going to happen with nit picking competitions.

 

 

[Head in the clouds]

Thanks Andy, and further to yours, while we're on the election candidates thing we might need some clarification about the SQ issue. Better to have a determination now than face the possibility of an invalidated election later.

 

In conversation with Mike Smith yesterday I commented that there are two vacancies in SQ and so the two candidates, Trevor and Tony would go onto the Board uncontested. However Mike pointed out that since Myles's term wasn't completed, because he resigned, it should mean that there would be a by-election to fill his place, leaving two candidates to contest the remaining seat, unless one of those two candidates won the by-election and then withdrew from the contest for John McK's vacancy.

 

That means that candidates other than Trevor or Tony could contest the by-election, so the SQ situation may not actually be decided already after all? Or can/has Myles' seat be declared vacant?

 

 

[Guest Andys@coffs]

Thanks Andy, and further to yours, while we're on the election candidates thing we might need some clarification about the SQ issue. Better to have a determination now than face the possibility of an invalidated election later.In conversation with Mike Smith yesterday I commented that there are two vacancies in SQ and so the two candidates, Trevor and Tony would go onto the Board uncontested. However Mike pointed out that since Myles's term wasn't completed, because he resigned, it should mean that there would be a by-election to fill his place, leaving two candidates to contest the remaining seat, unless one of those two candidates won the by-election and then withdrew from the contest for John McK's vacancy.

 

That means that candidates other than Trevor or Tony could contest the by-election, so the SQ situation may not actually be decided already after all? Or can/has Myles' seat be declared vacant?

This problem may not only be a problem for SQLD, I have seen an email today that Michael Apps (NSW) has also resigned from the treasurers position and indeed from the board as well over Ed's actions. I tried to ring Michael but just got voicemail so don't take it as fact for now..... In any event in NSW there doesn't appear to be any shortage of candidates for the position.

 

Andy

 

EDIT: I have been told that Mike has not resigned from the board.....

 

 

[nomadpete]

Well, that sure got me bogged down in my old highschool english grammar ! Now I am not sure about the constitution except that it is poorly written. But now that it has been pointed out, I would go with the word "and" meaning "together". Anyway we can expect the Reform Committee to fix that.... oh rats! Now Ed has another fire to put out - who will chair the constitution reform committee now that Myles has become an employee? Or will it be disbanded again? And if not disbanded, will Ed be seen as inconsistent? Just one more consequence that has not been explained to us members.

 

While we are splitting hairs, it occurred to me that there is a world of difference between Ed getting an assurance of "full support of the board" and being granted "absolute power to do whatever you want without consultation".

 

Anyway, it seems to have ended up highlighting the general temperature of the members who bother to read the news. Pity that the only thing we can count on is a continuance of the traditional RAAus poor communication.

 

Still disappointed,

 

Peter T

 

 

[Oscar]

It's worth looking at the CASA: SPORT AVIATION SELF-ADMINISTRATION HANDBOOK 2010 to see why all that has happened is not likely to inspire confidence in the management of our organisation. Put simply: one should never hand to one's opponent a large stick, and place a 'please kick me' sign on one's back.

 

 

[Guest airsick]

This problem may not only be a problem for SQLD, I have seen an email today that Michael Apps (NSW) has also resigned from the treasurers position and indeed from the board as well over Ed's actions. I tried to ring Michael but just got voicemail so don't take it as fact for now..... In any event in NSW there doesn't appear to be any shortage of candidates for the position.Andy

I've spoken to Mike this afternoon and he has only stepped down from the Treasurer's role. His reasoning for this is because he doesn't support the motives behind the previous treasurers resignation and he was somewhat dismayed to find that a board member had acted in a way beyond their authority in terms of appointing an employee [moderated].

 

In other news if someone wants to talk about my running for the board then feel free to give me a call on 0419 244 794 or drop me an email at [email protected].

 

In short though I would like to see our association run in a manner that is more appropriate for an organisation of our size, revenues and responsibilities. Personally I'd like our board to look less like this - http://www.raa.asn.au/contact/ - and more like this - http://www.raa.com.au/page.aspx?TerID=391

 

Those letters that people put after their name might be considered wanky by some but they mean a hell of a lot more than CFI when it comes to running something like RA-Aus.

 

Cheers,

 

Mick.

 

 

[AlfaRomeo]

Please be very clear - their is NO By-Election necessary for SQ and no by-election will be run for SQ as a consequence of Myles's resignation.

 

The Constitution at Rule 16 (iii) states that "If a vacancy occurs in the Board at time no greater than six months from the time of the next group election applicable to that Board position, the vacancy shall be deemed to be a casual vacancy and need not be filled in the interim period." Myles simply resigned about 3 months before his term would have expired anyway. It would be madness to try and run a by-election and have the winner's term expiring in September 2013. Nobody is that stupid.

 

Myles Breitkreutz's and John McKeown's terms were due to be completed at the AGM in September 2013 and neither were nominated to contest the coming election by 31 May when nominations closed.

 

Because Trevor Bange and Tony King were the only members nominated for SQ, they will be elected unopposed.

 

End of story.

 

 

[terryc]

why is it that people will stray from the facts, and to try to cover that fact up they add emotive arguments to their position. Stick to the facts.

 

Turbs puts forward a good argument for the executive being one but we all know that it doesn't ring true. Why has a small number changed their position and gone into bat for no process and poor governance. This goes against the whole purpose of the feb meeting. Some how we have gone from being horrified of what this president has done to a being a look after Ed club. We need to remind ourselves why we are in this mess in the first place. There has been a couple of comments in this thread that I would like to understand better. 1/ If the board have been working on this safety officer position for 12 months or more and have been frustrated by some members of the board then who are they, why were we not told and what is their reason for opposing it.

 

2/If caza are asking us to fund a safety officer which is outside of our deed of agreement why were we not told.

 

 

[kaz3g]

I typed out a long and detailed explanation of the obligations imposed by the Constitution and then lost them in the ether.

 

In a nutshell, clause 11(4) must be read to give it its true meaning and, to do that, a Court would look at other aspects of the Constitution and would also consider what the usual practice is in similar situations. In my view, the President cannot act alone and the power to act in the case of an emergency is limited to the Executive acting in concert. That said, the clause is clumsy and concerning as Turbs has stated.

 

I note that clause 18(viii) prohibits business being conducted in the absence of a quorum; 20(iii) gives each Board member one vote and proxies are counted for appointments; 20(iv) requires questions to be decided by a majority; 20(x) gives effect to and makes binding on members decisions of the Executive or the Board where they are made in accordance with the Constitution.

 

I also point out that "emergency" does not need to be defined. The literal rule of statutory interpretation requires it to be given its ordinary common meaning. I think someone has already provided a dictionary definition. My Macquarie is still packed up with my stuff waiting for me to move home but I'm sure others can see that the circumstances articulated to us in this instance did not fall within such a definition.

 

Kaz

 

Nothing there that gives comfort to Ed.

 

 

[kaz3g]

.....All I can say is that it was a bold decision and process and time will tell if it was the right way to go about it.

Military history is full of bold decisions that led to catastrophes. The Charge of the Light Brigade comes to mind. Some also led to great success but they are fewer and further between. History can be very unkind.

 

Kaz

 

 

[rhysmcc]

...1/ If the board have been working on this safety officer position for 12 months or more and have been frustrated by some members of the board then who are they, why were we not told and what is their reason for opposing it.

I'm quite interested to hear the reasoning behind this as-well from the board members. If this has been an issue before the board, what were the pros and cons being discussed and why were so many board members against the position?

 

 

[nomadpete]

Thank you Kaz. Your input is invaluable to those of us who don't speak legalese. At last I have enough information to get a grasp of the constitutional position. As you said, not much comfort there. And still no communication from our 'leaders'.

 

Peter T

 

 

[cooperplace]

I typed out a long and detailed explanation of the obligations imposed by the Constitution and then lost them in the ether.In a nutshell, clause 11(4) must be read to give it its true meaning and, to do that, a Court would look at other aspects of the Constitution and would also consider what the usual practice is in similar situations. In my view, the President cannot act alone and the power to act in the case of an emergency is limited to the Executive acting in concert. That said, the clause is clumsy and concerning as Turbs has stated.

 

I note that clause 18(viii) prohibits business being conducted in the absence of a quorum; 20(iii) gives each Board member one vote and proxies are counted for appointments; 20(iv) requires questions to be decided by a majority; 20(x) gives effect to and makes binding on members decisions of the Executive or the Board where they are made in accordance with the Constitution.

 

I also point out that "emergency" does not need to be defined. The literal rule of statutory interpretation requires it to be given its ordinary common meaning. I think someone has already provided a dictionary definition. My Macquarie is still packed up with my stuff waiting for me to move home but I'm sure others can see that the circumstances articulated to us in this instance did not fall within such a definition.

 

Kaz

 

Nothing there that gives comfort to Ed.

I know this is somewhat off topic, but I always enjoy reading your posts Kaz. They are always highly informative, very well reasoned, nicely articulated, not emotive, and a great contribution to the discussions here. Thank you very much for bringing these qualities to this forum.

 

Peter.