To: “Lauren Clarke, KB1YDD” <lclarke@arrl.org>
I’m bit taken back with all of the recent negative press releases about the ARRL, its Board of Directors, and most of all, about the Code of Ethics passed in January 2017. Personal views aside, the collective press does nothing for the social status of the ARRL, and opens it up to unneeded scrutiny and criticism.
While the decisions made with respect to the Code of Ethics was not yours, its repercussions will surely effect your fund raising efforts. I for one, am reassessing my small part in supporting the ARRL, and I suspect I am not alone. If you have thoughts about why I should continue to support the ARRL, I’d like to hear them.
Alan Applegate, KØBG
—–
From: Christopher Imlay <w3kd.arrl@gmail.com>
From: Christopher Imlay <w3kd.arrl@gmail.com>
Subject: ARRL Code of Conduct
Date: January 2, 2018 at 09:56:01 MST
Cc: “Clarke, Lauren KB1YDD” <lclarke@arrl.org>, “Roderick, Rick (1st Vice President)” <K5UR@arrl.org>, “Gallagher, Tom, NY2RF” <tgallagher@arrl.org>
Greetings, Alan. Lauren Clarke has shared with me your e-mail to her of last week. I am the long-time General Counsel for ARRL, and I share your concern about an aggressive disinformation campaign initiated by one or two people in the Southwestern Division. There is a good deal of misinformation about the ARRL’s Code of Conduct and ethical rules, and the Board’s decision to censure N6AA, an ARRL Board member.
I hope for and appreciate your willingness to keep an open mind on this subject before you decide on your future relationship with ARRL. My tenure with ARRL goes back 39 years now. I am intimately familiar with the Board and its workings, I can tell you without any hesitation that the Board members historically have been, and the current Board is now made up of good, diligent, hard-working volunteers amply worthy of the respect and gratitude of all ARRL members. The current Board is no different than that which has served the membership for so many years.
The public criticism of the ARRL Code of Conduct stems directly from the Board’s decision (by eleven votes in favor to three opposed, with one abstention) to censure Dick Norton, N6AA, for actions taken by him that the Board decided violated the Code of Conduct. That was decided by a significant majority of the Board. Supporters of Mr. Norton who were unhappy with the Board’s decision have criticized the process as well as the outcome of the Board’s internal deliberations.
They have done so by a serious mischaracterization of ARRL’s Code of Conduct. They have equated it with “censorship” and have referred to it as a “gag order”. This is absolutely inappropriate and inaccurate. The Code of Conduct is a component of the process of good governance that is or should be used by a Board of Directors of any nonprofit membership association, not just ARRL. ARRL should have had the Code in place long ago. However, it is only recently that we have consulted more actively with our long-time, highly competent corporate attorneys in Connnecticut who are experts in nonprofit corporation law about things of this nature, and been advised of the importance of adopting one. One prime motivation for adopting the Code of Conduct was to protect the staff from inappropriate conduct by Board members, for example. Another was to protect the prerogatives of the Board, which acts collectively and not individually. In recent years we have noted that certain ARRL Directors and Vice Directors have taken unilateral actions that are beyond the scope of their authority. Guidelines were suggested by our corporate attorneys to remedy these instances and to protect the organization and its members.
Each member of a nonprofit Board of Directors has a series of statutory duties to the organization which collectively make up their overall fiduciary obligation. The current ARRL Board has had these obligations explained to them in detail by our Connecticut attorneys. Those duties are spelled out in detail in the Code of Conduct. So is the purpose of the Code of Conduct. The advisability of having one for nonprofit associations is beyond question. For example, the National Council of Nonprofits states as follows:
“It’s useful to adopt a set of principles to guide a nonprofit organization’s decision making and activities, as well as the behavior of its employees, volunteers, and board members. These principles might be called the nonprofit’s “statement of values” or “code of conduct,” or something else. Honesty, integrity, transparency, confidentiality, and equity are each examples of values that are typically expressed in a charitable nonprofit’s code of ethics. The purpose of adopting such a statement formally is to provide employees, volunteers, and board members with guidelines for making ethical choices and to ensure that there is accountability for those choices. When board members of a charitable nonprofit adopt a code of ethics, they are expressing their commitment to ethical behavior. Such a commitment goes a long way to earning the public’s trust.”
ARRL has been briefed by our corporate attorneys on the importance of good governance. It is important for several reasons, among which is the fact that the Internal Revenue Service views good governance as a cornerstone of tax compliance for nonprofit associations. The statutory duties of directors of nonstock corporations are the duty of good faith; the duty of care; and the duty of loyalty. I won’t explain each of these in detail here but these are statutory duties. They are not just something that ARRL thinks is a good idea. The duty of loyalty requires generally that a director must act in the best interests of the corporation. It includes confidentiality obligations and it includes the obligation to not denigrate the processes of the Board of Directors, which operates collectively and not individually. You probably know all of this already, but bear with me. In any case, the requirements are just basic good sense.
There is a balance to be drawn between transparency with ARRL members about actions that ARRL is taking on their behalf (and for their benefit), and the need for confidentiality to protect ongoing advocacy efforts, confidential business interests and privacy interests of employees, etc. ARRL has always, to the greatest extent possible, erred on the side of transparency and continue to do so. However, as the Code of Conduct states, “maintaining the confidentiality of the Board’s deliberations…is essential to having full and frank discussions necessary for effective policymaking.” That should be obvious.
So the language for the Code of Conduct, which stemmed from advice from our Connecticut corporate attorneys, is very similar to that found in other nonprofit membership association codes of conduct. It is neither overinclusive nor overbearing. And most importantly, it is absolutely not censorship. Nor, as several have mistakenly asserted, does the Code shift the Directors’ “primary duty of loyalty from members to the corporation.” The primary duty of loyalty of a director is always, as a matter of law, to the organization. And it always has been. There has never been any “shift” of loyalty. But fulfilling the duty of loyalty to the organization doesn’t at all equate to an abandonment of the representative capacity of a director relative to the members in the division. It isn’t an “us or them” situation. Those who assert otherwise should be ashamed of themselves for suggesting otherwise.
A basic precept of nonprofit boards is that individual directors are not spokespersons for ARRL organizationally. ARRL has a communications person on staff. It is not the proper role of individual directors to speak for the organization or to publicly evaluate the wisdom of the collective decisions of the Board. Individual directors can and do regularly discuss policy issues affecting radio amateurs with members in their own divisions and with each other. They are obligated to keep in touch with members and to ascertain their interests and to represent those interests diligently. They do that. All the time. Nothing has changed in that respect since the Code of Conduct was adopted.The Board is well-informed by staff and professionals that are retained to provide briefings to them. But the deliberations are collegial, and some are of necessity confidential. The Board may, acting collectively, revise the Code of Conduct from time to time. But any such changes will be decided on by the Board as a group. It is how ARRL, and all other nonprofit boards, do business.
The Code, which was put on our web site as soon as the Board adopted it a year ago, states that a Board member “may and should solicit input from ARRL members on policy matters being considered by the Board, and may informally share with ARRL members the final actions taken and the issues considered by the Board in reaching its decisions.”
Furthermore, a Director can make any personal observations he or she wishes to make as long as they are identified as such and as long as there is no mischaracterization or criticism of the Board’s collective decision:
“Except where so empowered or authorized, a Board member speaking publicly to ARRL membership or in any other public forum must ensure that his/her statements are clearly identified as personal opinions and that he/she is not speaking on behalf of the ARRL in any official capacity or expressing the views or positions of the ARRL or any other ARRL Board Member. Even with such a disclaimer, a Board member may not make any adverse or false characterization of Board decisions that might bring the organization into disrepute.”
Despite the misleading characterizations that you have apparently heard of this matter, ARRL’s Code of Conduct, and the Board’s obligation to enforce it from time to time, are things that are very routine in nonprofit associations and recommended by attorneys specializing in nonprofit association law and by associations of nonprofits. It is critical to protect the collegial process by which ARRL volunteers made policy decisions on a representative basis. The Code is adopted to ensure good governance and statutory compliance by ARRL directors. They are still hardworking volunteers, all of them. They are still trying all the time to do a good job in promoting and advocating for Amateur Radio. That calls for collective, collegial action. Those who can’t be team players aren’t really well-suited for Board service. Divisive behavior and creation of a toxic environment are not constructive and the Code steers volunteer Board members away from that behavior. As the saying goes, “we must all hang together or we will surely hang separately”. Nothing about the Code of Conduct detracts from the obligation or ability of a Board member to openly and candidly discuss policy issues with members or to carry your message to a Board meeting and advocate for you. Nor does it preclude expression of individual opinions of Board members. But it does preclude denigration or misrepresentation of Board actions taken collectively, which I am sure you will agree ensures honesty, fair dealing and collegial policymaking.
No one raising a concern about the Code of Conduct has stated any reason to distrust the ARRL Board or its collective judgment, which has served Amateur Radio well for more than a century.
It never ceases to amaze me that people are so willing, almost eager, to believe the worst about ARRL in terms of organizational motivations. It is kind of disheartening to the current crop of Directors, Vice Directors, officers, and the staff and people like me who have dedicated their entire careers to making ham radio as good as it can be. Please think about this. You have good, hardworking people and volunteers who are giving ARRL members everything they have to give, and acting in good faith every day. Respect that and those good people, please.
Thanks for hearing me out, and thanks for your support of ARRL.
73, Chris W3KD
—
Christopher D. Imlay
Booth, Freret & Imlay, LLC