22 ASMP/NY News after Aspen
May 14, 1996 - This story appears in the May/June '96 issue of ASMP/NY News,
the newsletter of the New York chapter of ASMP and is used with permission.
ASMP National Board
Expels Kaplan, Goldstein
It was an eventful weekend in Aspen, Colorado, as overlapping meetings of
the National board and chapter presidents were held from April 26 to 29.
National has removed two members of the board, Alan Goldstein and
Peter B. Kaplan, charging them with, among other things, "breaches of
fiduciary duties." (Fiduciary duties, as applied in this case, place group
responsibility over personal opinion. Thus, a board member can't espouse a
cause or disagree with a decision the board has already passed. Once a
decision is made, members can't attempt to undermine it and must keep
potential controversies within the boardroom.)
The board also rescinded decisions concerning the allocation and
authorization of certain funds, including money earmarked for MPCA.
In addition, board members voted to issue a referendum calling on
general members to "recognize that the continuation of the operations of
MPCA is an important part of satisfying ASMP's constitutional
objective....[and] support the continued operations of MPCA as a positive
force for the benefit of all ASMP members...."
In another move concerning MPCA, all members of the board of
directors of ASMP are now on the board of directors of MPCA.
The removal of the two board members was handled in executive
session with board member David MacTavish reading the charges. In an ASMP
news release, Society president Reagan Bradshaw said that the directors had
no other recourse. "...[W]hile there can be no public discussion of [the
debate that took place] because it was held in executive session, ASMP
members must appreciate that their elected board would not take the action
it did without compelling and legally sound reasons."
As a result of the charges, Goldstein resigned and Kaplan was
removed. Ten directors voted for Goldstein's removal, three were against,
one abstained; nine voted for Kaplan's removal, four abstained.
The resolution to remove Goldstein stated that he was found "to
have breached his fiduciary duties to ASMP and to be unfit to serve as a
It was charged that he had "publicly opposed and attempted to
subvert MPCA....thus exposing the Society to potential ridicule, disrepute
and financial harm...." It was also charged that he had "made and
published...unsubstantiated accusations of malfeasance and other statements
of a libelous nature against ASMP and MPCA officers, staff and members...."
The third charge stated that he had "made and published...incorrect
and inaccurate statements concerning the structure and purpose of MPCA,
which, if true, would expose the Society to potential anti-trust and tax
The final charge was that he has "published outside the board a
privileged communication, with the potential effect of waiving its
privileged nature, thus exposing the Society to potential harm...."
There were seven charges against Kaplan, including his public
opposition and attempt to subvert MPCA. It was also charged that he
publicized "unsupported, false and defamatory accusations of duplicity by
the ASMP and MPCA boards; that he had publicly made "unsupported, false and
defamatory statements alleging collusion, subterfuge or other improper
relationships between ASMP staff and Time Inc., concerning the electronic
rights policy established by Time Inc."; that he "publicly made false and
misleading statements misrepresenting ASMP board action and policy
concerning electronic rights"; that he made "false and defamatory
allegations of theft by ASMP and/or MPCA of his intellectual property, has
explicitly or implicitly threatened litigation against the Society and has
threatened to harm the Society through adverse publicity for his personal
gain"; that he "attempted to instigate other photographers to assert claims
against ASMP and/or MPCA"; and that he had "conducted personal business
gain in which he use[d] the name and credit of the Society for his own
Both Kaplan and Goldstein said in separate interviews after the
meeting that their primary responsibility as board members was to the
general members who elected them.
Said Goldstein in a phone interview, "I was trying to protect ASMP
from policies MPCA was doing. My obligations are to the members and not to
MPCA, which is a separate organization-or should be.
"I was elected to protect the Society's interests as I see them.
And that dictated...my actions. That's why I served on the board."
He also said that he felt he had inadequate time to defend himself
against the charges. Goldstein refused further comment, saying he was
waiting to see what National chooses to release about these events before
deciding on his response.
Kaplan, upon attorney's advice, had little comment when contacted
at his home. He did say that he and Goldstein were not notified that
charges were to be brought, and they were "totally surprised" by what
occurred. He felt he had had inadequate time to speak in his own defense.
Said Bradshaw in a telephone interview, "Every bit of the
information that the board made its decision on was information...that each
of those individuals had. They had everything except the motions that were
Bradshaw said that he was involved in preparing the charges. "The
executive board did not get together as a group." He said that MacTavish
was also involved. "We consulted with [ASMP general counsel and managing
director] Victor Perlman. And I talked to others on the board."
Bradshaw denied any charges of unfairness. "I don't believe [we
were unfair] because the two people were well aware of what they were
Asked if he was saying that Kaplan and Goldstein should have known
this was coming, he said, "Yes, I think they should have. It had been
brought to their attention before. I don't think they were surprised by
this move, given [that]..the actions...they took at various times did not
go without reprimand."
He felt that these reprimands should have been an indication that
the two faced charges for dismissal. "They were certainly aware of their
Commenting on the charge that there wasn't time for the men to
prepare a defense, he said, "The board tried to do this in as fair a manner
as it thought was possible, and the board had to make a decision.
"This is not a court of law," he said. "It's actually not a
democratic organization. It's a representative organization."
The action the board took, Bradshaw said, was not punishment. "It
was to protect the Society against future actions."
Jim Pickerell, who is a sponsor of a petition calling for a
referendum on ASMP's funding of MPCA, commented that it seemed that by this
action that the ASMP board had effectively nullified the votes of members
who voted for Kaplan and Goldstein in the recent board election.
"We acted on information that was privy only to the board,"
Bradshaw said. "The voters didn't have that information." He felt that "the
information that the board acted on is information [that] if released would
be damaging to ASMP."
Bradshaw said that the issue was not only about information
"getting out to the membership. I'm talking about information getting out
to the general public, to the FTC, to the Justice Department, to whoever
might be out there....I'm telling you that there were statements made that
were attributed to the board, and beyond the board, that were damaging to
ASMP. I'm talking about possible trouble with [a] governmental agency. I'm
not talking about opinion of members here.
"Alan Goldstein has made in public...incorrect and inaccurate
statements concerning the structure and purpose of MPCA, which if true
would expose the Society to potential anti-trust and tax liability."
Reached for comment, Vince Streano, who has also recently called
for ASMP to cease funding MPCA, said, "I'm shocked to hear what happened,
and I'm waiting for more information as to why it happened. It seems to me
that every time anybody raises a dissenting voice, they suddenly find
themselves being expelled from the Society in some way, shape or form. And
there's a history of this happening for the last three or four years."
Streano also said, "Nothing in the ASMP constitution I can see
gives them the right to do this."
It was pointed out by several ASMP members that a provision of the
ASMP constitution seems to specifically prohibit the board from taking the
action it did. Article VIII, Section 5 states: "Recall of a board director
shall only be by referendum to the general membership."
However, the action wasn't taken under any provision of the ASMP
constitution. Said ASMP executive director Dick Weisgrau in a telephone
interview, "There is a provision in the New York State not-for-profit
corporation law-and ASMP is a New York State not-for-profit
corporation-that supersedes anything that ASMP has. Under corporate law, a
board of directors is not only able to, but [has the responsibility to]
take any action that is necessary to protect the interests of the
"It's court-made law. It's been as high as the Supreme Court."
Weisgrau said he couldn't cite the specific cases and deferred to Victor
Perlman on that. "But," he said, "apparently there have been a number of
cases in both the appeals courts and as high as the Supreme Court."
He said that fundamentally the law comes down to the fact that "a
board of directors has the widest latitude imaginable to take an action to
protect the interests of the corporation."
It was his understanding, he said, that this was the practice under
which the board's action was taken. "I was not present in the sessions and
don't know if that was put on the record or not. It would appear to me,
however, that it would be under that [law] because there is no
constitutional provision for the board to remove a director."
Apparently Weisgrau interprets Article VIII, Section 5 as applying
to the recall of a director by the membership, not by the board. Said
Weisgrau, "What the constitution says is that the membership may, at its
choosing, by having [x-number] of names on a petition...institute a recall
of a director....[I]f, for some reason, the membership feels that a board
member or the entire board is not fulfilling its responsibility, it can
institute a recall action...."
Bradshaw also says that Article VIII, Section 5 does not apply to
removal of a board member by the board. "Our constitution does not have a
provision...for the removal of a director-all it has is that a director can
Asked what was the difference between removal and recall, he said,
"Recall is the procedure by which it goes back to the membership. We
removed them under the provision of the New York law.
"The constitution doesn't address the issue of removal of a board
director for cause." He said that the board's action had nothing to do with
Article VIII, Section 5. "We've done something here that was not
anticipated by the constitution."
One of the reasons for a "removal" and not a "recall" was, he said,
"that the removal was for causes that would not be possible to publish
because of possible damage to ASMP."
When Victor Perlman was asked about this, he said that what was in
question was not just damage to the Society but to other directors as well.
He was referring to the charges that both men had made "libelous" and/or
"defamatory" statements about other board members. If the specifics of the
charges were given to the membership, that would "spread the two men's
libel and slander of people on the boards of ASMP and MPCA."
There was some question about the use of Roberts Rules of Order,
specifically sections that call for notice and time to respond when there
is a "trial" of a member of a society. Said Weisgrau, "This wasn't a trial
of a member of the society-it was for a member of the board," and therefore
Roberts didn't apply.
Vince Streano said he found it "unsettling" that the board of
directors had to look outside its own constitution, in effect ignoring its
own constitution, to find "some obscure law" to benefit their ends.
Bradshaw was asked that if, in the future, there were circumstances
in which the board needed to take action it deemed necessary, might it once
again act under the New York corporate law.
"If it's in the best interests of ASMP, the board could choose to
do that," he said. He made it clear that what is "in the best interests of
ASMP" is decided by the board. "That's what they're elected for." Which, he
agreed, effectively removes the general membership from any such decision
On condition of anonymity, an angry ASMP member said, "That's how
they get away with all this sh*t. They hold all their top level stuff
during executive session and then they go after anybody who says anything
about what happened in that session."
As a final note on the law used to remove the two board members,
New York attorney Joel Hecker, who represents photographers and other
photography-related clients, including many ASMP members, confirmed the
statute, which says, in part, that directors may be removed for cause by a
vote of the board.
He did point out that procedures have to be followed, and said that
"if proper notice was not given, the two men could protest in writing and
begin a petition drive.
"Although any not-for-profit corporation, including ASMP, is
entitled to protect its integrity, and the law provides for removal of
directors who have created problems or demonstrated malfeasance...there is
a built-in due process requirement...to protect minority views of the
membership as well as minority views of the board members. The question
here is not whether they had the power to do it, but whether they exercised
that power in an appropriate manner.
"There seems to be a dispute as to what actually happened, and if
these two people are to be believed, then perhaps their rights, and the
rights of the members who voted for them, have been violated."
There won't be an election by the general membership to replace the
two. The 13 members of the board will nominate and then vote on who will
fill the terms of the removed members. Said Bradshaw, "The provision in the
constitution is that the board will replace those two empty seats. We will
consider anyone the membership wants to put forth."
On the issue of the board rescinding funds allotted to MPCA and
other efforts, ASMP says the decision was made "because the funds have not
been used nor needed and also to remove confusion and misunderstanding
about the purpose of the allocation of funds that had been set aside for
At this writing, funding of MPCA is the subject of a petition being
circulated among ASMP members that calls for a referendum on ASMP's
financial support of the agency. The sponsors of that petition are Alan
Abramowitz, David Betito, David Brill, Nancy Brown, Dick Busher, Dennie
Cody, Cameron Davidson, Alan Goldstein, Peter B. Kaplan, Don Klumpp, Jim
Pickerell, Robert Rathe, Stan Sholik, Steve Sint, Paul Slaughter, Vince
Streano, Randy Taylor and Steve Umland.
Said Vince Streano, "I think rescinding the funds is a direct
result of the petition."
Last November the ASMP board approved up to $100,000 in reserve
funds to be available "to further the educational and representational
initiative with the specific approval of the executive board required for
the use of such funds or portion thereof." Some or all of that money could
have gone to MPCA. Earlier in the year, $25,000 had been authorized for
ASMP treasurer Eugene Mopsik, according to the ASMP press release,
said that "none of the authorized funding has been used since the November
ASMP said that "[a]t such time as funds are needed for MPCA and in
accordance with ASMP funding policy, a budget and funding request will be
submitted to the board for consideration." Said Bradshaw, "There's
nothing to prevent the ASMP board from authorizing funds" in the future.
Perhaps as a response to the petition calling for a referendum on
the financing of MPCA, the board plans to issue its own MPCA referendum,
"to determine the entire membership's support for MPCA."
Said ASMP's news release, "MPCA has been subjected to criticism
from what some describe as a small but vocal group of detractors who had
initiated a petition to issue a referendum to halt MPCA operation."
Stan Sholik pointed out that this was not accurate. "Our referendum
doesn't ask that MPCA be shut down. It's merely designed to let the members
decide whether member dues should be expended to support the efforts of
MPCA." The petition says that "a successful referendum will bar ASMP from
contributing any further financial aid in any form to MPCA."
Sponsors of the petition believe it is wrong for "ASMP to continue
supporting a 'for profit' organization with the dues money of ASMP
members," and say that "with less than 15 percent of the eligible members
of ASMP participating in MPCA, it seems inappropriate for the dues of the
other 85 percent to provide the funding."
"Further MPCA funding," the petition suggests, "should come from
its members, or from its partners, so ASMP can concentrate on issues that
will benefit its entire membership."
Said Sholik, "Whether or not our referendum passes or fails has no
effect on MPCA, merely on the funding. It seems to me that National would
get behind our referendum, because if it succeeds it's clear that members
do not want ASMP funds to go into MPCA, and therefore they can carry on
MPCA by finding outside funding."
Said Vince Streano, "It's really a benign referendum-it says we
want the members to finally have a choice as to whether or not they want to
take this very different course of action-to continue to use ASMP dues
money to support MPCA; to see if they want a non-profit organization to
help fund a profit-making organization, and if they think it's right that
some of the people making the decisions are members of both organizations."
But it's not "some of the people making the decisions." As a result
of action taken at the Aspen board meeting, the board of ASMP is now the
board of MPCA. Said Robert Rathe, "My concern is that [this move]
eliminates any real checks and balances. But on the other hand, a larger
board at MPCA can broaden the spectrum of management."
He added, "But I can see that it's possible some members might view
the two boards being the same board as a conflict of interest."
Reagan Bradshaw sees no such conflict. When asked if members who
belong to MPCA, and who now serve on both boards, would, in effect, be
supporting and voting for their own self-interest and investments, he said,
"Of course....They have an interest in the success of the venture."