ASMP Expels Directors

Introduction

It is often difficult to get an accurate account of an event. It is
impossible to get an accurate account when the person giving the account did not
actually witness the event. This is what really happened at the April, 1996
ASMP Board meeting, how it happened, and to the extent that discussion is
permitted, why it happened.

What Happened

First, the bottom line: what really happened. Two directors, Alan
Goldstein and Peter B. Kaplan, were the subjects of a two-part motion, one part
relating to Goldstein and one part relating to Kaplan. The motion asked that
they be found to have breached the fiduciary duties to ASMP imposed on them by
virtue of their being directors; that they be found unfit to serve as directors
because of those breaches; that they be asked to resign as directors; and if
they did not resign, that they be removed as directors by the Board. The motion
set forth various categories of acts that were claimed to have breached their
duties and was accompanied by a packet of documents to support those claims.

After long and difficult discussion and debate which extended over the
course of two days, the members of the Board voted overwhelmingly to pass both
parts of the motions. Alan Goldstein resigned as a director. Peter B. Kaplan
did not resign and was removed as a director by the Board.

It is important to understand a number of things that were NOT done,
particularly in light of some of the misinformation that has been circulating
since the Board meeting.

First, neither of them was expelled from the Society. They were removed
as directors, not as members. They are still members of ASMP with all of the
rights, privileges and responsibilities that go along with membership.

Second, they were not recalled as directors. A recall occurs when the
body whose members voted an officer or director into office decides to call that
officer or director back from that office (literally to recall him or her) and
votes to do so by the necessary majority. Thus, the action in this case was for
removal as directors, not for their expulsion or removal as members and not for
their recall as directors.

How This Was Done

The next question is how was this done, i.e. under what authority and by
what procedure did the Board act? The authority under which the Board proceeded
was the state statute that primarily governs ASMP, the New York Not-For-Profit
Corporations Law (NYNPCL). The NYNPCL grants the Board the clear authority to
remove a director for cause by majority vote (as long as there is a quorum,
which there was). No procedural requirements are provided in the NYNPCL for
the removal of a director by the Board. The NYNPCL outlines the procedure for
other actions, such as expelling a member from the Society, but those provisions
do not apply to this case.

Actions by the ASMP Board are generally controlled by ASMP's
Constitution and By-Laws. Like the NYNPCL, these documents detail the
procedures for expelling a member and recalling a director, but are silent on
the mechanics of removing a director for cause by the Board.

Similarly, Robert's Rules of Order has a substantial amount of material
relating to charges and trials for the expulsion or removal of a member.
Member, however, is clearly defined near the beginning of the Rules as
referring to membership in the Society, not membership on the Board. So, once
again, the procedural rules in this source do not apply to this situation.

Thus, the Board was presented with a two-part motion and no requirement
that it be handled in any way other than provided in those portions of Robert's
Rules of Order that apply to dealing with motions. The Board proceeded
accordingly.

The subject matter of the motion was such that the presentation,
discussion, debate and vote were held in Executive Session under and in
accordance with ASMP's Constitution and By-Laws. Those governing documents
impose a strict duty of confidentiality and silence on all those who attend the
Executive Session, and only the motion and vote are to be recorded, published in
the minutes of the meeting, or otherwise made public. During Executive Session,
only the directors are present, along with any others whom they may specifically
ask to attend. It would be much easier for the directors to answer questions if
they could talk freely about the details of the proceedings conducted in
Executive Session, but doing so would, itself, constitute a violation of ASMP's
Constitution and By-Laws and a breach of the directors' duties. The
Constitution and By-Laws place an obligation of silence on all those present at
Executive Session, the directors as well as any others in attendance.

Why This Was Done

This leaves the question of why was this action taken, a question whose
answer begins with the two-part motion put before the Board. The motion sets
forth certain categories of behavior on the part of the two directors,
respectively, which behavior serves as the basis for the Board action requested
in the motion. The grounds for action set forth in the part of the motion for
one director are substantially different from those set forth for the other.
All of the grounds, however, are ways in which the Board was asked to find that
the two directors had breached their "fiduciary" duties to the Society. While the
details, such as the specific offenses and the documentation of those offenses,
cannot be disclosed, it is important to note that the supporting documents
reviewed by the Board were taken almost entirely from the two directors' own
writings.

"Fiduciary" is a legal term that refers to a person who has been placed
in a position of trust, such as the trustee of a trust or the director of a
corporation. A fiduciary is held to the highest standard of behavior imposed
under the law. Some examples of the requirements imposed on a fiduciary are
that he or she must always act solely in the best interest of the Society; that
he or she must never injure or endanger the Society or subject it to risk of
liability or harm; that he or she may never use the Society or his position
within it for his own, personal benefit; and the he or she must behave as a
prudent person would. The motions list the types of behavior that violated the
directors' duties to ASMP.

It is clear from the numerous and varied grounds for removal listed in
the motion that the behavior of the two directors had put the Society, and
therefore the members to whom the Society really belongs, at financial and
professional risk. If the other directors had allowed such behavior to go
undisciplined, they could have been seen as approving that behavior, which would
have increased the risk and exposure of the Society. If the two directors had
remained on the Board, there was every reason to believe that their improper
behavior would only have continued, thereby jeopardizing the Society even
further.

There have been claims that the motion was made and approved in order to
stifle dissent over MPCA. That is simply incorrect. the chapter presidents and
representatives who attended the Chapter Presidents' meeting in Aspen can tell
you that the entire Board and senior staff willingly answered any and all
questions relating to MPCA that they were asked. Any member who has ever
attended a presentation about MPCA at his or her chapter can tell you that
nobody in the management of the Society wants to avoid any questions or
discussion about MPCA. Rather, they are eager to communicate the truth about
MPCA.

The actions that served as the basis for the motion include publicly
opposing and attempting to subvert MPCA. A director's duties and rights are
different from an individual member's. Directors have the right, and even the
obligation, to question, challenge and fight about any issue before the Board.
Once the Board makes a decision, a dissatisfied director can still keep arguing
his position and keep trying to get a majority of the directors to change their
minds. All of that activity, however, must be kept limited to the members of
the Board and must not be done in public. By taking a negative position in
public on an operation of the Society, a director is, in effect, trying to
substitute his judgment for that of the majority of the Board and to overthrow
the decision of that majority, in direct violation of his duties to the Society.
Far worse, that director jeopardizes the success of the project that the
majority of directors has, in its collective judgment, found to be worthwhile.
In doing so, he endangers the Society's investment in that project, its
reputation, and perhaps its very existence. No Board can or should allow a
director to do this.

Regardless of what one may think about my opinions or any of the charges made
against me, you may wish to question if I had a fair opportunity to defend
myself at the Board's disciplinary hearing on April 27th & 28th. I do not
at this time, plan to complain about the action of the Board. I feel the
Board Members were persuaded and believed that they needed to take decisive
action in order to protect ASMP. Whether any of the Board Members can
independently justify their actions, I can't say.

The disciplinary procedure did not come close to following any guidelines in
Robert's Rules of Order. The entire concept of Robert's Rules of Order is to
provide a means for fair and equal presentation of opposing points of view.
It is not to provide parliamentary procedures that allows one side to stifle
the other.

Apparently, ASMP is citing some sort of NY common law as giving the Board
authority to act as it sees fit at any time, in order to protect the
corporation. I am not a lawyer and cannot comment on that opinion. In view
of this action, one may question the value of ASMP's constitution. It is my
understanding that ASMP solicited membership on the basis of ASMP's support
of its constitution.

According to Robert's Rules of Order a fair disciplinary proceding should be
run the following way:

Defendents should have a comittee investigate and present the results to the
board.
Defendents are to receive advanced notice in writing about the date they will
be charged.
Profering of charges and a trial are to be held at two separate meetings with
at least 30 days between.
A serious attempt at objectivity is to be made at the trial.
Defendents are to be allowed to prepare and present their defense.
The trial should be held in a civil manner. Respect is to be maintained.
The defendent has a right to present evidence and witnesses on his behalf.
The defendent has a right to cross examine witnesses or those bringing
charges against him.

To quote Robert's, "Neither the society or any of its members has a right to
make public the charge of which a member has been found guilty, or to reveal
any other details connected with the case." [Editor's note: ASMP has made
the broad charges public selectively releasing material that may support its
actions without giving the defendents a chance to challenge the implications
of these charges.]

Also, "A trial by the society cannot legally establish the guilt of the
acused, as understood by a court of law; it can only establish his guilt as
affecting the societ's judgement of his fitness for membership."

It is up to the reader to determine if ASMP followed these guidlines, or was
justified in ignoring them. The membership ultimately will get the kind of
Society it deserves.

I feel I have already put out a major effort on behalf of ASMP's membership.
I cannot do much more. Any action or statement that I have made has been in
keeping with what I believed was best for ASMP. I have nothing to gain by
anything I have said or done. I urge all members not to look at me or other
"leaders" for guidance. If you want answers, maybe it's time for members
to do independent research, and ask ASMP the tough questions that may concern
them.

It's your organization and you deserve to have it run the way you want. This
may take considerable effort on your part as it has on mine.

Readers have seen Victor S. Perlman's THE TRUE STORY about the removal of Alan
Goldstein and Peter B. Kaplan from the ASMP board. They have also read the long
list of charges of both men and Alan Goldstein's statement about how the trial
was conducted.

I believe there are a couple other points related to the whole situation that
need some examination.

Executive Session

"Executive Session" prohibits everyone else in the room from being able to tell
their side of what went on. Perlman has given us a list of charges with no
other explanation. In theory the "executive session" procedure is used when
discussing personnel matters to protect the individuals involved and to honor
their privacy. In this particular situation the procedure has resulted in some
serious charges about two individuals being put on the record without giving
those individuals a chance to defend themselves

Legal Right To Do What They Did

After receiving some input from outside lawyers, I am persuaded that the ASMP
board probably had a legal right to do what it did under New York State
non-for-profit corporation law. This law gives corporations very wide latitude
in taking actions that are designed to protect the corporation. In such cases
corporations are not required to act according to their own constitutions or
bylaws or by Roberts Rule of Order.

Fiduciary Responsibility

One of the important issues in this action is that the men were charged with
having "breached their fiduciary duties."

In a practical sense, a fiduciary relationship exists between an elected
official and those who elected him.

The ASMP board is taking a position that the fiduciary relationship is to the
organization, and that the will of the organization is decided by a majority
vote of the board. But by definition it would seem that the board member also
has a fiduciary responsibility to those who elected him in the same way as a
member of Congress has a responsibility to speak out for the voters in his
state, not necessarily to remain quiet once the majority has chosen a particular
course of action.

In his ballot statement Alan Goldstein said: "As a director, I represented the
best interests of the membership by taking a tough stance on MPCA. The general
membership should be more aware of how MPCA is being managed and be involved in
the determination of its future. I have been a member of MPCA since its
inception and supported its establishment as a commercial venture. Now, I have
many questions about the viability of MPCA and the departure from its original
structure as a distinct business. Three and one half years after its formation,
MPCA is not being run as a separate for profit corporation. It is a subsidized
program drawing funds from the general membership and operating as an alter ego
of ASMP."

"I am not convinced that ASMP funding MPCA benefits most members....There is no
stated plan for MPCA to repay ASMP. I doubt it will ever be in a position pay
back the substantial funds that ASMP has 'loaned' it," he continued.

This was the only ballot statement where an individual had strong reservations
about MPCA. Out of a total of 976 members voting, 576 voted for Goldstein
making him the 8th highest vote getter. In addition Goldstein's candidacy was
endorsed by Reagan Bradshaw who told him at the time, "We need diversity of
opinion on the board."

Clearly it would seem that Goldstein would not have been carrying out his
"fiduciary responsibility" to the people who elected him, if he had not spoken
out against certain MPCA actions.

One of the dilemmas for Peter and Alan was how to carry out their fiduciary
responsibility to the people who elected them by presenting their case to the
board as a whole and at the same time carry out their fiduciary responsibility
to the organization, ASMP.

Does the Punishment Fit the Crime?

It appears from what ASMP has put on the record that Goldstein and Kaplan wrote
something -- we are not allowed to know what that was -- that if it were made
public it could seriously damage ASMP. Therefore, it is alleged, the board had
no choice but to immediately remove them from the board.

Even if we assume the first is true it seems to me that the board probably had
some other less severe alternatives.

In order to consider if there might have been other options we first need to get
some sense of how serious the offense might have been. Let us assume that
something was said by Goldstein or Kaplan about ASMP policy, that was false, and
that could cause ASMP to lose its non-profit status if the FTC (Federal Trade
Commission) ever learned of it, and assumed it to be true. I have no knowledge
that this was, or was not, the case. I am just trying to think, in my own mind,
of what this serious written offense might have been.

Certainly, it is understandable that the board would then want to go on record
immediately denying that such statements made by board members were true. The
issue is further complicated because they don't want to call attention to the
substance of the statements by making a press release. It seems to me that the
simple fact of bringing charges would have been sufficient to notify any
outsider that might later question ASMP's policy that the statements made by
Goldstein and Kaplan had been challenged and were not accepted as accurate
representations of ASMP policy.

The trial phase of the action could than have proceeded in a normal deliberate
process with care to be fair to both ASMP and the individuals charged. If the
FTC were to learn of the offense prior to completion of the trial ASMP could
point out that they do not agree with what had been said and were taking
appropriate legal action.

I see no reason why the normal "due process" procedures of the "trial" phase had
to be ignored. I would have thought that the defendants could have been given
time to review the charges, call witness, present evidence on their behalf, and
cross examine those bringing charges against them. Without getting into the
substance of what went on at this trial, the information we have about the way
the trial was handled seem to have left a lot to be desired.

Under corporate law the board may not have been "required" to act in any other
way, but one would have thought there might have been a desire to treat
colleagues on a volunteer board fairly.

Jim Pickerell

Jim,

I have two pieces here that I feel compelled to comment on. Both regard
MPCA and ASMP. One is the Weisgrau reply printed in Taking Stock and the
other a note forwarded to me regarding a petition to ASMP on MPCA.

First, a few things declaring my 'agenda.' I'm a photographer making 90%
of my income from stock. Most of that comes from agency sales. I have an
exclusive contract and am happy with it. I resigned from ASMP about two
years ago because of the board decision to create MPCA. (I had been an
officer of the Oregon chapter for several years, was very active and a
proponent of ASMP.) I strongly opposed ASMP doing this for two reasons: I
didn't think it was an effective way to influence pricing and contracts in
the electronic environment. If you're one of many other potential vendors
you're simply negotiating like everyone else. In that environment you have
no clout unless you have a monopoly. You can set a price standard and your
competitors laugh at you as they underbid and take your business. The
whole idea seemed ludicrous.

Secondly, as a trade association I strongly opposed ASMP creating a
business that was going to compete with mine. That seemed counter to a
trade association's purpose. In response to my objection, MPCA creators
adamantly stated that this was not to be stock agency. I felt otherwise
and was not going to pay dues to a group that would compete with me. I
certainly had no desire to join theirs. Hearing their plan in light of my 6
years experience with a stock agency and my own stock sales, MPCA's plans
for operations seemed pie-in-the-sky at best.

That said, I have some comments regarding Weisgrau's letter. As my memory
serves me, MPCA proponents stated, during the limited discussion afforded
it, that ASMP would not subsidize MPCA. An initial loan was mentioned. The
membership fee, they implied, would cover the remaining startup expeneses.
Weisgrau's statement about MPCA turning down money sounds like double-talk
to me because the people running ASMP at the time and forming MPCA were
mostly the same people.

MPCA was created to inflluence standards, Weisgrau says. This begs the
question then, have they set any pricing or licensing standards? From what
I've read and experienced, they seem invisible and likely to remain so.

It also begs the question that if ASMP has not been effective as Weisgrau
says, why continue supporting it. He seems to be talking out of several
sides of his mouth at the same time. Mostly it seems he is willing to
shade the argument any which way to make a case for MPCA.

He says sales are a premature worry. If I started a business and more than
two years later it had virtually no sales I would be concerned. Oh, I
forgot, it's not about sales, it's about creating standards. Tell that to
all the photogrpahers who've paid their membership dues and were told about
how ASMP/MPCA was going to do it right and pay 60% commission and screw
those greedy stock agencies. Tell that to ASMP members who are subsidizing
MPCA so a minority group of members might make some money.

Weisgrau's remarks about much of the money owed being merely bookkeeping
seems sleight of hand. It either pays rent, utilities, insurance or not.
Does this mean ASMP offices have extra space, computers, phones, desks,
files, etc just lying around. What about ASMP staff time being diverted to
MPCA time?

The $100,000 approved for MPCA advocacy and education sounds like lawyer
talk. I thought that was the ASMP's mission. If advocacy and education are
THE issues of MPCA then why are not all ASMP members involved. And why do
those involved pay extra dues?

I always felt MPCA was a big issue that should have been discussed/debated
far more at the time of formation. It ultimately should have been voted on
by members. It represented a dramatic change in the mission of ASMP and
it's relationship to photographers, particularly stock photographers but in
the long term even assignment photographers. I thought MPCA proponents
glossed over many important details.

My own gut feeling at the time, based only on reading between the lines of
some board members writngs about stock agencies, was MPCA was a good way to
show they could go around stock agencies and do it right. Fine, go out and
start a stock agency. Only do it with your own money, not ASMP's.

I can't sign the petition circulating since I'm no longer an ASMP member.
But know that you have my support. I would like to rejoin ASMP as at one
time I thought it was a valuable component of the photography trade. It
seems to be becoming less relevant under current leadership.

I also notice that MPCA now openly talks about being a stock agency and
pursuing sales with designers and advertisers. During its formation,
proponents said again and again MPCA was not a stock agency. It would not
sell to traditional stock markets. Times change.

Regards,
Warren Morgan
907 NW Irving St.
Portland, OR 97209