There was something of a surprising quality as events relating to the Association's governance unfolded in New York at the Winter Meeting. On Monday, January 20, two days before the official opening of the meeting, key members of the organization's leadership—president Newell Fischer, president-elect Jon Meyer, and administrative director Ellen Fertig—spent two hours with New York's foremost expert in non-profit law, obtaining a preliminary, cost-free consultation on our by-laws and related governance issues.
Meyer presented what the trio had learned from the consultation, and why they'd sought it, at numerous points in the meetings: to the Executive Committee as a whole, to the meeting of committee chairs, to the Board, to the Council, and at the meeting of members.
What precipitated the consultation? During the preceding fall, in response to the proposed procedural code growing out of the recommendations of the Task Force on Education and Membership, a number of members made various challenges to our current interpretation of the by-laws covering such matters as elections, the relationship of Board and Council, the use and purpose of the meeting of members, and issues of proxies and quorums. These challenges necessitated numerous trips to our regular counsel for consultation, at increasing expense. Meanwhile, two proposed by-laws changes were due to be presented at the Winter Meeting, having each received the requisite fifty member signatures necessary for a by-laws amendments.
These amendments also involved significant governance issues. One would de-link certification from training analyst status and Board committee membership (proponents say the Board could still set these as standards, but they would no longer be mandated through by-laws). The second amendment would make the Board more directly responsible to the Council, with provisions giving the Council direct authority to rescind Board decisions by a majority vote.
The proposed by-laws amendments will be brought to Council for a vote in June. If adopted by Council, they will be sent to the membership for approval. If Council approves or disapproves without adoption, the by-laws will be sent to the meeting of members for a vote in January 2004.
Further, members made numerous charges that the organization was out of compliance with the laws governing New York non-profit corporations (we are currently chartered in New York state).
Victoria Bjorklund, Esq., a partner with the firm of Simpson, Thacher and Bartlett, was identified as the most widely recognized leader in this area of the law, and her consultation was somewhat startling. The two-hour consultation yielded several preliminary impressions. The basic message was that we are out of compliance with current state law governing non-profits. This does not constitute an emergency, but we do need to move toward compliance. Bjorklund informed Fischer, Meyer, and Fertig that it is very common for older membership organizations like ours to have by-laws that follow an internal logic but have not kept up with current law.
It is very common for older membership organizations like ours to have by-laws that follow an internal logic but have not kept up with current law.
Meyer's multiple public presentations of the issues constituted the initial phase of a process of due diligence, whereby key organizational bodies and the membership were informed of the facts of the situation and of the necessity for us to move into compliance with the law.
The attorney informed us that the current form and governance of the Board on Professional Standards is not recognized under the New York Not-for-Profit Corporation law. Various issues having to do with selection of the board of directors (our Council) and standing committees (Executive and Finance, possibly others) will need to be reconsidered.
There's nothing wrong with using mail ballots, so all the effort put into proxy voting for the most recent election was unnecessary.
We may find it advantageous to re-incorporate in Delaware, rather than New York, as Delaware is more flexible in certain ways. The IPA, for example, is incorporated in Delaware, in part for that reason. Re-incorporation in Delaware would cost somewhat more than fixing our situation in New York but might buy us more in the long run.
Whether we end up as a New York corporation or a Delaware one, changes in the relationship between Board and Council are necessary. By tradition and practice, we have functioned much as a bicameral organization, with Board and Council serving as somewhat parallel governmental bodies. Apparently, there is no legal ground for this tradition.
The Board will have to evolve into one of two structures:
It could become a committee of the corporation.
It could become a wholly owned subsidiary corporation, whose only member was the American Psychoanalytic Association. This option would be analogous to the structure currently enjoyed by the American Psychoanalytic Foundation. A subsidiary corporation functions autonomously, but it is subject to the ultimate approval of the parent organization.
Newell Fischer suggested that this will be a long process, perhaps taking as much as five years to complete. Immediately, little action is necessary besides beginning the process of discussion and discovery and consulting with our insurers about certain immediate liability issues. According to Bjorklund's information, the chairman and secretary of BOPS, who currently are ex officio members of Council but voting members of the Executive Committee, cannot have more privileges on the Executive Committee (a committee of Council) than they do on the Council itself. Thus they cannot ultimately be voting members of the Executive Committee, unless they were made voting members of Council somehow.
Those who heard this report were stunned. Numerous people asked why the by-laws amendments, which no longer seemed necessary, could not be withdrawn. The amendments' supporters, however, felt they were still necessary in the interim period while the current by-laws are in force.
The new information was widely presented and discussed; the presentations met with mild disbelief but a great deal of relief because long-festering issues were on the table in a definitive way. Major
Prudy Gourguechon is editor of TAP.
BOPS figures including Ron Benson, chair, Eric Nuetzel, secretary, and Cal Narcisi, co-chair of the Board's ad hoc committee on certification, speaking at major meetings, uniformly described the consultation as offering a great opportunity for APsaA to determine the degree of autonomy the Board will have and which the Board feels it needs to do its work.
Asked about the apparent incongruity between his cheerful and welcoming response and what the attorney seemed to have said, Nuetzel replied, “Well, no one enjoys being a legal nullity.” But, he said, “this gives us an opportunity to ask the organization whether it wants to have an independent standard-setting body or not.” He added that certain of the Board's functions require relative autonomy, but perhaps others do not. “We're clearly antiquated. Our structure has not been working, and that's why we have all this strife. Some may want a completely independent institution, a completely separate corporation.”
The next discussion on the “Brainstorming List,” which should be well under way by the time this TAP is published, will address this topic and will be moderated by Fischer and Meyer.