MEA bylaws are clear as mud

PALMER — The Matanuska Electric Association’s board of directors gave notice of how they intend to apply bylaw changes passed in the co-op’s election this year.

The first by-law provision limited MEA board members to three terms. In a previous board meeting, member David Glines moved to unseat Lois Lester, pointing out that she had been elected to her fourth term in the same election in which the bylaws were changed.

Board Attorney Robin Brena gave his opinion at a board meeting Monday that the change should go into effect in 2010 and should not apply retroactively. Therefore, once the rule is in effect, all board members are assumed to have not served any terms. Which means, conceivably, that Lester could serve seven terms. He said that, generally, if a body is planning to have a bylaw change be retroactive they should be very clear in the wording of the bylaw change. And this change in particular mentioned nothing about when it would take effect.

Glines said that, in his view, three attorneys could likely come up with three different opinions on the matter. Brena disagreed.

“There may be reasonable debate among attorneys with regards to the effective date,” he said. But as to whether the change applies retroactively, he said, “I don’t think you’re going to get three good opinions from three good attorneys that differ on that point.”

The board accepted that reading of the rules and indicated it would be likely to act on Brena’s advice in the future. Board member Larry DeVilbiss, however, said he wasn’t on board.

“I want to be very clear that I do not agree with this opinion,” DeVilbiss said, saying he believed members voting for the change didn’t likely read it the same way Brena did.

The second issue was more thorny, requiring quite a bit more legal explanation from Brena.

The bylaw change that passed decreed that directors will not be allowed to serve if members of their family have a certain amount of business with MEA.

In Brena’s view, the bylaw change mixes up two sections of the bylaws. One has to do with conflicts of interest. If a board member has a conflict of interest on a particular issue, he or she is supposed to stay out of any debate and not cast a vote. But the bylaw change makes a conflict of interest into something affecting a board member’s eligibility to serve.

It can’t be both, Brena said. A board member can’t be directed to resign at the same time he is required to recuse himself. Not only that, he said, but there’s no real provision in the bylaws for how to remove a board member who is in violation of the rules.

Also, there is talk that the change might have been directed at one board member — Janet Kincaid — whose son has done business with MEA contractors in the past. The measure was also co-sponsored by the man — Lee Jordan — who Kincaid defeated to win her seat. Jordan has at every turn denied singling Kincaid out. Still, Brena said, that appearance of possible taint is reason in and of itself not to apply the rule.

“You have a mess and there is no way to reconcile (it),” he said.

Brena said he thinks the board should send the change to its bylaw committee, get the committee a lawyer, and have the committee come back with an amendment to sort out the conflicts that could then be put to a vote of the co-op’s membership.

“The membership should have another opportunity to clarify this,” he said.

Until then, he said, he believes the board shouldn’t take any action if a conflict arises and, if they absolutely have to act before the committee returns a change, they should solicit an opinion from a Superior Court judge.

DeVilbiss, who, during the day, runs a farm in Palmer, told Brena that, “this farmer’s understanding of that was pretty clear until you got started.”

“Your legal advice is that even though this is in effect we should ignore it,” DeVilbiss said.

Brena replied that his advice is, that, “there isn’t any reasonable way to implement this.”

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.