23
Goldstein Mounts Defense
May 20, 1996 - Editors Note: In the following piece Alan Goldstein
launches his defense against the charges that resulted in his
expulsion from the ASMP board on April 28, 1996. Given that the
charges were made public by the ASMP leadership, and that there
have been various characterizations of these charges by Dick
Weisgrau, Victor Perlman and others in ASMP leadership positions,
Alan has found it necessary to use the same public forum to defend
himself.
In an effort to seek closure to this sad event in ASMP's history,
Alan asks that all the documents related to the charges be made
public. In this way all who have heard the allegations might see
that the charges are baseless and that there is absolutely no
substance to them. He also seeks reinstatement to his elected
position and public apologies from the ASMP directors, individually
and collectively, admitting that they erred in their analysis of
the materials presented to them and rushed to judgment.
It is my opinion that if some such action is not quickly
forthcoming we will be presented with a continuous stream of claims
and counter claims in the coming months. Taking Stock Online is
prepared to publish all relevant documents from both sides as the
truth begins to unfold.
(If you have not previously read ASMP Expels Directors [Article 20] you may want to refer to it before you begin this story.)
ASPEN '96 -- THE TRUE TRUE STORY!!!
By Alan Goldstein (Who actually was there!)
Victor Perlman recently posted an article titled "ASPEN 96: THE TRUE STORY."
(Mr. Perlman said:) 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.
Mr. Perlman, I could not agree more. Unfortunately, your statement gives the
impression that you actually witnessed the "event."
In reality, Mr. Perlman was not present during the vast majority of the
Executive Session. During the 5 1/2 hours of proceedings on Saturday, April
27th, Mr. Perlman was in attendance perhaps 20 minutes in total. He was only
called to the room when the board had specific "legal" concerns. He did not
hear any of the discussion. On Sunday, the 28th, Mr. Perlman was present for
the entire 15 minute period where a vote was taken to remove me.
So by Mr. Perlman's own logic, "it is impossible to get an accurate account"
from him because "the person giving the account did not actually witness the
event."
Furthermore, some of his statements in the rest of his "Story" are either
from information that others provided to him -- a violation of ASMP's rules
regarding executive session -- or, speculation on his behalf. As ASMP has
put this matter on the table, I feel that it is within my rights to respond.
Keep in mind that my response is that of an eyewitness to the entire
proceedings.
The hearsay "eyewitness" concept is not limited to Mr. Perlman. Mr. Weisgrau
also has some tendencies in that direction. He wrote the following to Jim
Pickerell on May 8th.
(Dick Weisgrau wrote:) ...I, like you (Pickerell) was not in the "Executive
Session." Each removed director had the oportunity to confer and debate
in the Executive Session.
How would Mr. Weisgrau know if we had an opportunity to confer or debate if
he wasn't there? Who told him what happened? With whom could I confer? Not
with my lawyer, that's for sure.
(Perlman wrote:) 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.
To describe the process as debate is a joke. It was a fait accompli from the
moment the session started. I was not given the charges in advance. I was
not given adequate time to prepare or perform a rebuttal. Important evidence
on my behalf was 1500 miles away in my office. I was not allowed to
challenge their "evidence" or defend my actions. I was not allowed to
present any witnesses. I was not allowed to cross-examine their witnesses.
I was not allowed to have counsel or consult with my attorney.
(Weisgrau in letter to Pickerell May 8) Clearly from the evidence supporting
the charges, which I had seen prior to the Executive Session, there was
nothing to defend.
And they saw no reason to let us defend ourselves!
The first day consisted of a series of attacks on me by various directors
while I tried to interject clarifications and corrections to the "evidence"
they presented against me. They shouted me down. At one point, a director
was so angry with my attempts to defend myself that he cursed at me. I
remained composed and did not respond in kind. The second day consisted of
no discussion or "debate" relating to my charges. The president simply
stated that "discussion is over" and we took a vote.
(Perlman said:) 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.
In my opinion, Mr. Perlman is trying to justify the board's unfair action
with his peculiar interpretation of Robert's Rules of Order. ASMP's
constitution states "Robert's Rules of Order, revised (latest edition) shall
be the parliamentary authority for all questions of procedure not set forth
in the Constitution, By-Laws, or by national board action."
The general priciple of Robert's is to provide fair and equal opportunities
for opposing points of view. This was completely disregarded by the ASMP
Board.
The entire concept of "Society" in relation to parliamentary procedure in
Robert's refers to membership in a deliberative body, i.e. ASMP's board --
not the basic ASMP General Membership category. ASMP hardly has an
opportunity to apply Robert's Rules of Order outside of the board and
executive board meetings. Of course the disciplinary procedures of Robert's
should be followed in the process of removing a director from the board. In
other words, when Robert's is stating procedures for expulsion, it is talking
about expulsion from a deliberative body. The procedures are only
incidentally applicable to a broader category of membership.
Regardless of one's view of Robert's, is it acceptable for Mr. Perlman to use
his interpretation as justification for ASMP being unjust and ignoring it's
responsibility to conduct a fair proceeding?
(Robert's Rules) For the protection of the society and members alike,
however, the basic steps which, in any organization, make up the
elements of a fair disciplinary process should be understood. Any
special procedures should be built essentially around them, and the
steps should be followed in the absence of such provisions.
It is hard for me to imagine that Mr. Perlman is not aware of these
guidlines--he was holding a green copy of Robert's Rules of Order during the
proceedings.
These are Robert's guidlines for all "Discilplinary Procedures" whether for
expulsion or other action. (Note: my reference is "Robert's Rules of Order
Newly Revised 9th edition.)
(RR)---The society should have a committee investigate and present the results
to the board. But neither the society nor any member has the right to
make public any information obtained through such investigation; if it
becomes common knowledge within the society, it should not be revealed
to any non-member.
You've got to be kidding. They made open announcements and sent media
releases!
(RR)--- Accused are to receive formal advance notice in writing about the
date they will be charged.
Nada, zilch!
(RR)---Preferring of charges and a trial are to be held at two separate
meetings with at least 30 days between.
(RR) A member has the right that allegations against his good
name shall not be made except by charges brought on reasonable ground. If
a member is thus accused, he has the right to due process--that is, to be
informed of the charges and given time to prepare his defense, to appear and
defend himself and to be fairly treated.
Surprise... same day!
(RR)---A serious attempt at objectivity is to be made at the trial.
(RR) The "managers" at the trial have the task of presenting the
evidence against the accused, and must be members of the society. Their duty,
however is not to act as prosecutors--in the sense of making every effort to
secure convictions--but rather to strive that the trial will get at the truth
and that, in the light of all facts brought out, the outcome will be just.
There were at least ten prosecutors in that room. The same individuals were
also the judges!
(RR)---The proceedings should be held in a civil manner. Respect is to be
maintained.
One director screamed at the top of his lungs, "Shut up your f---ing mouth!"
Another director kept asking me questions and when I tried to answer, would
say, "Don't answer that." Other examples of prejudged minds were prevalent.
(RR)---The accused has a right to present evidence and witnesses on his behalf.
No way Jose.
(RR)---The accused has a right to cross-examine witnesses or those bringing
charges against him.
Wouldn't that be nice?
(RR)--- Right to counsel.
(RR) The trial is a formal hearing on the validity of the charges, at which
the evidence against the accused is presented by the managers for the
society, and the accused has the right to be represented by counsel and
to speak and produce witnesses in his own defense.
Defense counsel can be attorney(s) or not but must be member(s) of the
society unless the trial body (that is, the assemble or trial committee
as the case may be) by vote agrees to permit attorney(s) who are not
member(s) to act in this capacity.
I requested my counsel's presence, and may have elected to be represented by
an attorney who is a member of ASMP. Not according to New York laws says Mr.
Perlman!
(RR) Neither the society or any of its members has a right to make public
the charge of which an expelled member has been found guilty, or to reveal
any other details connected with the case. To make any of the facts public
may constitute libel. (In using the term expulsion, Robert's is referring to
a deliberative body such as ASMP's Board.)
A trial by the society cannot legally establish the guilt of the accused,
as understood by a court of law; it can only establish his guilt as
affecting the society's judgment of his fitness for membership.
Well you didn't hear about it from me or Peter. That's right, ASMP
publicized the charges! Do you think that just because I was not expelled
from the Society, ASMP is justified in publicizing its charges against me?
It is up to the reader to determine if ASMP followed these guidelines, or was
justified in disregarding them. The membership ultimately will get the kind
of Society it deserves.
(Perlman said:) 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.
I just showed that this statement is untrue. Don't they have a
responsibility to handle a discipinary proceeding fairly? Does this sound
like a pathetic attempt at a loop hole defense of ASMP's actions? Robert's
is very clear about the need for fairness!
(Perlman said:) 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.
So who broke Executive Session? At least one director is leaking to Mr.
Weisgrau and Mr. Perlman? And who are they trying to protect anyway? Not
me.
(Perlman said:) 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.
I don't know what the chapter presidents will tell you, but I've been trying
to get answers to my questions about MPCA for over a year. This is the real
reason for the board's action.
THE TRUE TRUE STORY BEHIND THE STORY!!! (This is what it is really all about.)
I have always been a strong supporter of ASMP and I've been active for years
at many levels of the organization. At the urging of several members, I ran
for election to the ASMP National Board because we had serious concerns about
the direction the Society is heading. I wanted ASMP to concentrate on core
goals: to strengthen its position as a defender of photographers' rights,
educate buyers and sellers of photography regarding factors that must be
considered in establishing fair and equitable fees and encourage significant
growth of the organization.
My actions and statements regarding MPCA are in keeping with what I believed
was my duty and responsibility as an ASMP director. On the recent ASMP
election ballot, I questioned MPCA's financial stability and its dependence
on ASMP. This statement, which was published by ASMP, clearly expressed that
I felt there was a need on ASMP's board for critical analysis of the MPCA
project. I was endorsed by 40 prominent ASMP members and was elected with
the eighth highest vote total to represent that view on the ASMP board.
I believe that I have been removed from office for exercising my independent
thinking and initiative. I spent considerable time and effort engaged in
critical research into the viability of MPCA. Last winter, I sent the board
a private report that was merely an attempt to engage the directors in a
dialogue on MPCA. My analysis was not meant to be "official" or the final
word on MPCA. After all, even as an ASMP director, I had limited access to
information about MPCA.
I wanted my report to remain private. I would make no mention of its
existence except that ASMP referenced it in its published charges against me.
The contents of my report also has been kept private until now.
Unfortunately, a person who was worried about the contents of my report
becoming public may be writing about its contents on the internet! Also
distrurbing are statements made by officers and staff of ASMP that reference
statements in my report.
I was following correct procedures when I sent an advance copy of my report
to ASMP's president, Reagan Bradshaw. He suggested that I send my report to
the sitting directors of ASMP rather than follow my plan to send it to the
incoming board after the March 15th election. Mr. Bradshaw even stated that
ASMP would reimburse me for the cost of printing and distributing my report.
He further supported my actions when he faxed the following statement to the
directors, "I would like to see general response from various board members,
perhaps not as a comprehensive report, but a general sharing of views--This
really is what we should be doing between board meetings."
ASMP's second vice president, Jay Asquini, faxed this to me, "I just wanted
to thank you for all of the work you spent preparing your report. Special
thanks for presenting the facts as you see them. MPCA has been cloaked,
unfairly I feel, in politics. In my opinion, MPCA is far too important for
us to allow politics to enter into the equation. You've brought to light
many critical concerns. I know the MPCA board and the ASMP executive board
is taking criticisms to heart and will respond in a thorough, and I hope,
satisfactory manner. I can see nothing but good coming of your effort."
James Cavanaugh, ASMP's secretary, sent me this memo, "...you bring up many
points that must be examined, discussed and acted on by the board. You are
absolutely right when you say that it will be difficult to deal with some of
the unresolved issues in MPCA." Mr. Cavanaugh also said, "Just as Reagan
Bradshaw endorsed you and wants to hear your opinions, I do too! A counter
point of view, on all matters of ASMP or MPCA, is important."
Another officer of ASMP phoned me and stated that a key criticism that I made
about MPCA was "inescapable."
Now, as a result of my personal expression of concern to the board and
others, I have been pilloried and expelled from office. Furthermore, the
basic concept of fairness was totally lacking in the process. An observer
may wish to question if the charges that ASMP brought against me were in
keeping with the supportive statements made by ASMP's officers. How do we
reconcile this seeming contradiction? Is it possible that board members were
pressured to remove me?
How can one objectively judge the charges against me when the basis for those
charges is kept secret? Is it fair for ASMP to publish charges against me
while refusing to supply the evidence for those charges?
My attorney has an answer for the charges against me. He says that they are
totally groundless. There was no defamation of character and I did not pass
privileged documents. I also did not subvert MPCA. According to my
attorney, my actions and statements reflect what a responsible director
should be doing. Furthermore, my attorney is of the opinion that my
resignation from ASMP was obtained by fraud. I cant prove that he is
correct. But he explained his statements to me and showed the basis for his
opinions under the law. His views certainly conflict with the evidence that
ASMP used for removing me from the board. Perhaps if I had a fair chance to
defend myself, we could have determined who is right.
I dont know where we are going with all of this. The confict seems to have a
life of its own. I feel I have been seriously damaged by the actions and
statements of ASMP. And these statements seem to be continuing from ASMP
even from those who were not witnesses to the event. The situation will be
greatly compounded if the charges are published in the ASMP Bulletin. In
addition I am expending money on legal fees and other costs. I also have
lost significant income due to the time I have spent on this matter.
However, I am not bitter and I do not wish to see ASMP harmed. It still is a
worthwhile organization that benefits photographers. I would be very
receptive to a settlement should ASMP offer me one.
The new ASMP constitution states, "Recall of a board director shall only be
by referendum to the general membership." I believed that we agreed to run
ASMP under the constraints of our constitution. In view of the board's
action, one may question if ASMP's new constitution now has any value.
The fundamental purpose of ASMP's constitution and election process is to
encourage members to speak out and express diverse opinions. The board's
recent action in removing me and another director sends a message to all
members not to speak their minds. Whatever members think of my views, they
may wish to question if this is how ASMP should be run.
Subversion Charge
I've been accused of subverting MPCA. The reality is that I'm the one who
told the board that the emperor has no clothes. The funny thing is that most
people in this industry seem to know that without me telling them.
(Perlman said:) 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.
I can tell you where I made public statements about MPCA -- my election
ballot! I also recently signed a petition for a referendum to stop ASMP's
funding of MPCA. Yet I never have opposed MPCA. I haven't taken a "negative
position in public." I have been very quiet and haven't made any other
statements in public. What have you ever heard from me?
MPCA was fine with me as long as ASMP's funds were not used, or there was a
reasonable likelihood of repayment. This view does not go counter to any
Board policy that I have seen. ASMP has always stated that MPCA is a
separate "for profit corporation." It hasn't even been given a budget by the
Board of ASMP! In what policy statement have the majority of the directors
demonstrated that MPCA is just another project of ASMP? Have they ever
appropriated funds (other than loans) to MPCA?
MPCA is now evolving into a project of ASMP because it failed to stand on its
own after spending its initial capitalization. It was not originally
intended to be subsidized by the general membership of ASMP. However, it
would be fine with me if the membership votes to support it. And if not,
then it will have to find independent financing if it is to continue. What's
wrong with letting the members decide? Is this subversion?
What some call subversion I call my duty. I believe directors should only
approve funding when they know how the money will be spent. ASMP does not
even budget in advance for MPCA expenses. It does account for the expenditures
after the fact. These expenses get listed as "due from affiliate" to ASMP at
the end of the fiscal year (a loan.) Unfortunately this precludes the full board
from having budgetary control over MPCA. I objected to this.
Here is part of a letter that I wrote to the board:
I wrote to the Board Members to raise my concerns because there has
not been time to address these issues at the Board Meetings....
...Just because one may feel that the matter is closed does not preclude a
Director from raising new points of concern with other Directors. ASMP
support of MPCA has not been fully debated. It has hardly been debated at all.
We are not close to making a decision "on a fully informed basis." Nearly
everything that the Board knows about MPCA has come from one source with
one point of view. And that source has provided no budget, no business plan,
no research and no performance assessment. MPCA has a history of faulty
assumptions and has repeatedly failed to meet its goals. Our job as Directors
requires us to continually assess the performance of the staff on MPCA and
all other projects.
While not every detail of MPCA can be thought through and planned in advance,
MPCA has failed to take prudent actions on matters it can control. It could
have viewed and secured photos at the beginning. It could have hired an
editor. It could have structured the initial capitalization (membership
fees) so that it had a shot at self sufficiency. MPCA could have better
supervised and directed Ray DeMoulin. It could have done some real studies
and analysis. It could have looked at the project from the point of view of
photographers' and buyers' needs, not as a theoretical concept. MPCA could have
calculated its costs before giving photographers 70% of gross and AGT and CCC
most of the rest. I can go on and on.
MPCA has put the cart before the horse so many times, that the horse has
grown tired of hearing promises and have wandered off to greener pastures.
Now MPCA has to resort to another animal to drive it. The cash cow of dues
money is just out back in ASMP's barn. Maybe the ASMP members won't mind if
we just "borrow" it for a little milking. After all, MPCA is a very hungry
child and may die if it doesn't get some milk. And nobody's watching that cow
anyway. Someday MPCA will have its own cow and promises it will pay back the
milk.
Now MPCA can't recollect promising to pay back that milk. On its 5% to 10%
return of current gross revenues ($Zero), MPCA ain't buying its own cow soon.
Every $10,000 of ASMP's resources will require gross MPCA sales of $200,000
in order to cover the debt. Even if ASMP forgives MPCA of its debt, who is
to say that MPCA won't lose money on every sale it makes? We don't have any
forecast that says when or if MPCA can break even.
Dick fails to give the Board a clear step by step description of how he will
run MPCA over the next six months, one year, 5 years, or even next month.
What would happen to MPCA should Dick leave suddenly? Who is prepared and
qualified to run it in his absence? ASMP's investment in MPCA comes down to
our faith in one man to accomplish his ambiguous goals.
Besides the lack of understanding by the Board of key MPCA information, the
"plans" for MPCA keep changing. Thus the Board will need to re-assess MPCA
to see if faith alone is justification for the large ASMP financial
underwriting that apparently is the new order of the day. If you support
MPCA's mission, then you may wish to ask why the funds this Board has
authorized have not been spent. Didn't you expect MPCA to be further along
by now?
As a Board Member, can you honestly dispute the above statements? If so,
provide us with some facts not more verbiage.
Surely you must see that we have a responsibility to press on for answers.
(Perlman said:) 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.
If MPCA fails, just blame me. Don't bother to question the planning and
management of the project. You haven't so far. It's easier to just say it
was the work of a subversive.
So what is this all about? Why are these intelligent people acting this way?
You're way off base if you are looking for "legal justification" by ASMP as
an explanation for the Board's action. I suspect that there is a serious
amount of denial going on. I'm not an expert, but my guess is that you must
look for psychological reasons to explain the group dynamics that are at
play.
It's easier to attack the messenger as a subversive than to face ones own
shortcomings. Does this remind you of the old McCarthy hearings?
Alan Goldstein
P.S. I hope your ready for more. I'm just getting started. Why don't you
ask ASMP to publish the supporting documents for it's charges against me. My
lawyer read them and his response was that they were "really dumb."