IN THE ARBITRATION OF Alam Mustafa, Bilal Murtaza, Qadir Mohiuddin Mohammad, Fazale Sharif Claimants and Award Khalid Baig, Jamal Qureshi, Raffath Shareef, Rehana Markar Respondents And Cross-Action This arbitration concerns the management of the Islamic Society of the East Bay (ISEB), a religious nonprofit corporation which runs a mosque. The evidentiary hearing took place on December 2-5, 2014, and March 9-11, 2015. The parties appeared personally, although not all parties were there every day, and through counsel. Paul deLorimier, Esq. appeared on behalf of Alam Mustafa, Bilal Murtaza, Qadir Mohiuddin Mohammad, and Fazale Sharif. Omair M. Farooqui, Esq., appeared on behalf of Khalid Baig, Jamal Qureshi, Raffath Shareef, and Rehana Markar. Carl A. Sundholm, Esq., appeared on behalf of Respondent and Cross-Complainant Jamal Qureshi. 1 Both sides recorded the proceedings. At the close of the hearing, all parties rested their cases and counsel confirmed that they had the opportunity to present all evidence they wished to present. The parties filed post-hearing briefs, the last of which was received on April 20, 2015. On May 11, 2015, the arbitrator issued an Interim Decision, containing most of the findings and conclusions of this final decision, and ordering new elections of directors using different membership lists than the then-acting Board had used in 2014 and was intending to use in 2015. The arbitrator invited further briefs in response to the proposed ruling and then scheduled further oral argument, which took place on June 18, 2015 because of scheduling difficulties. At the close of the oral argument, the arbitrator ordered an additional day of evidentiary hearing, which took place on July 8, 2015. The focus of this hearing was on the arbitrator's questions concerning who should be permitted to vote in the elections contemplated by the Interim Decision. After the close of the evidence, counsel were directed to meet and confer to attempt to agree on the voter lists based on the criteria stated in the Interim Decision, and to try to agree on the manner of the election. That process did not result in any agreements. At the outset, given the nature of the dispute and the possibility that members of ISEB community who were not present at the hearing will read this opinion, the arbitrator wishes to make a few things clear. Although the parties have strong feelings about the underlying reasons for the dispute and expressed negative opinions about one another’s motivations and management of ISEB, none of these factor in the arbitrator’s decision. This is not a judgment of moral right and wrong, and who has been a 1 I apologize in advance if I misspell anyone’s name (some of which are spelled various ways on the documents) or through clumsiness cause offense. good/honest/moral or bad/dishonest/corrupt director of this mosque. Nothing in this decision should be construed as an endorsement or criticism of anyone’s policies, goals or actions. Indeed, in the issues that are core to this decision, both sides received legal advice that supported their actions. Unfortunately, those legal opinions were inconsistent and it is left to this arbitrator, an outsider to the community and its history, to render a decision about its corporate management. The arbitrator has now reviewed the oral testimony, the exhibits, and the arguments of counsel, and makes the following findings and decisions. Background and Litigation History ISEB has operated more than 20 years and is governed by a charter entitled Constitution, which operates as its Bylaws and has been amended by the membership from time to time. There were disputes concerning an election for the board of directors in the summer of 2013. The board has nine members, three of which are elected every year to serve three year terms. At the time of the dispute, there were six members continuing their terms (“carryover members”) and three members were newly elected. Complaints were made challenging the propriety of the election of the three new members. Disputes about whether the three newly elected members should be allowed to participate in board decisions resulted in the board members meeting separately as two boards, one with the newly elected members and one without, each claiming control of the organization. For ease of reference, I will refer to the various boards acting after June 2013 as the Baig board (Dr. Khalid Baig was the Vice-President of the 2012-2013 board and was nominally leading the carryover board until a new president was elected), the Ahmed board (Mushtaq Ahmed was elected as president at the first meeting of the alternative board, consisting of the three newly elected members and two of the carryover members, Qadir Mohiuddin and Fazale Sharif, who objected to the Baig board failing to allow the newly elected members to participate), and the Waqar Khan board (Waqar Khan was appointed director by the Baig board after it removed Messrs. Mohiuddin and Sharif, and then was elected president on October 16, 2013; the first name is necessary because of the other Khans featuring in the narrative). The Petitioners in this case are the members of the Ahmed board other than Mr. Ahmed. The Respondents are the members of the Baig board; other directors also joined Respondents in their affirmative claims. The Petitioners in this arbitration assert that the Baig and Waqar Khan boards improperly removed Petitioners, and thereafter ran the ISEB without legal authority. The Alameda County Superior Court ordered this dispute to arbitration based on the record before it, including the First Amended Petition for Arbitration filed by Petitioners and the Verified Cross-Complaint Under Corporations Code §9418 filed by Mr. Qureshi and asserting arguments in favor of all Respondents. There were actually several lawsuits, a request for a hearing before the Shariah Council, and a number of twists and turns, but I will limit the history to the key events relevant now. In a separate lawsuit, on November 26, 2013, the court ruled that Mushtaq Ahmed was not eligible to run for reelection under the Bylaws because he had served two prior terms, one of which was a partial ISEB Mngmt Decision p. 2 term but which the court held counted as a term under the Bylaws. The court found that Mr. Ahmed’s election was void ab initio, and ordered a new election to replace him. In yet another lawsuit, on February 4, 2014, the court held that the Khan board could not require ISEB members to fill out a new application as a condition for voting in that replacement election, but could require in-person voting with photo identification; the Waqar Khan board renoticed the election and carried it out in compliance with this directive. On April 3, 2014, the court granted the petition for arbitration and denied respondents’ request for a judicial determination, ordering all the issues in the petition and cross-complaint to arbitration. On July 22, 2014, the court appointed me to be the arbitrator. The arbitration was set for a hearing in early December 2014, but the four days set aside for the hearing were insufficient to complete the testimony, so the additional hearing days in March 2015 were added. Thereafter, the arbitrator scheduled one additional day of testimony. Findings of Fact The burden is on the Petitioners to prove their case by the applicable standard of proof, which is a preponderance of the evidence. Accordingly, my findings are based on that standard, which is far less than a certainty.2 1. The ISEB Constitution provides for annual elections in June of each year to elect three new board members whose term begins July 1 and ends three years later on June 30. (Art. IV, §2.b, Exhibit A3p.22) Generally, the election is held around the time of and in conjunction with the annual general body membership meeting, which is held the last Saturday in June. 2. In practice, the election is managed by the Election Committee, the head of which is appointed by the Board of Directors. The Election Committee creates a roll of eligible voters (in conjunction with the Membership Committee), and distributes election materials to the membership both for nominations to the board and for the election itself. (Art. IV, §2.d, Ex. A3p.22) Members must confirm their belief in certain religious tenets, be eighteen years old, file an ISEB membership form with the ISEB office, pay the amount set by the Board of Directors “for construction, operation, and membership fees” by December 31 of the year before to be eligible to vote in the subsequent year. (Art. II, §1, Ex. A3p.18) Under the Bylaws, no nominee can be on the Election Committee (Art. IV, §2.e, Ex. A3p.22), which by tradition runs independently of the board. In the first half of 2013, the Election Committee was chaired by Alam Mustafa, who had held the position for approximately 18 years. He described the process by which the roll of eligible voters is created. In 2009, the Bylaws were amended to provide that the election committee will audit the membership before any election or vote. (See Art. II, §4.b, Ex. A3p.19) The Membership Committee provides its list of 2 For readers without a legal background, a preponderance of the evidence is often expressed as requiring 50.1% probability in the judgment of the finder of fact, who in this case is the arbitrator. ISEB Mngmt Decision p. 3 members and the Election Committee compares that list with records of bank deposits and receipts in the categories of payments which can comprise the annual member’s dues, which under the Bylaws may be for construction, operation or membership fees. (See Art. II, §1.d, Ex. A3p.18) Mr. Mustafa provided the cover sheets for the audited membership lists in 2011, 2012 and 2013. (Ex. E39)3 The amended list is returned to the Membership Committee and posted on the bulletin board available for members to see.4 At the time of the election, the Membership Committee provides the Election Committee with sheets of address labels to attach to envelopes to the membership containing initially, nominating papers, and later, the ballot for the election. The ballots are stamped with blue ink and marked with a sticker containing a tracing number, which allows the Election Committee to check at the time the ballots are submitted to be sure no one votes more than once. Mohammad Khan, who replaced Mr. Mustafa as chair of the Election Committee in mid-2013, described how votes were counted in the August 2013 election: ballots were collected from the ballot box and the mail box, they were opened with the committee members present, the labels on the ballots were compared to the list to confirm their validity, and the votes were then tallied. Mr. Mustafa agreed that this described the methodology he used in prior elections. 3. In June, 2013, the Election Committee chaired by Alam Mustafa found there were four nominations for directorship positions but one, Vazir Mansuri, was ineligible because he had not been a member at the end of 2013 as required by the Constitution. The Election Committee determined that therefore there were only three eligible candidates and on June 10 announced that those three were elected (Ex. D25), without obtaining the board’s approval for this action. Indeed, Mr. Mustafa testified he acted contrary to board direction, but he believed the Constitution required that Mr. Mansuri not be included on the list. Mr. Mansuri had been in an ongoing dispute with ISEB about his membership status which had been submitted to the Shariah Council for determination. Sometime after May 29, after hearing from Mr. Mansuri without the ISEB present, the Shariah Council informed the board that ISEB would be given the 3 Respondents challenge whether these audits ever took place. Mr. Mustafa’s lists mention a number of people who participated in the audits, including respondent Raffath Shareef in one year. Ms. Shareef testified that she did not participate in the audit, although she did review some records. Given Mr. Mustafa’s testimony, and the fact that a second audit in 2013 conducted by Mr. Mustafa’s replacement confirmed that the voter list was accurate (the only exception being one member who paid dues but whose membership application form could not be located), I find that Mr. Mustafa and others did conduct audits. 4 There were many disputes about how long the list was posted, and whether Mr. Mustafa, Hamid Ali (the Membership Committee chair), Mushtaq Ahmed (the board president at one time), the Imam, and others had special access to lists of members with contact information. The Bylaws provide that membership lists, including names, addresses, phone numbers and email addresses, shall be kept confidential. (Art. II, §5, Ex. A3p.19) I do not find persuasive the evidence provided by Respondents to demonstrate that certain people, in particular Mr. Ahmed, had special access to contact information for the members and used it for improper electioneering. All that was proven is that he actively campaigned, which does not violate any rules. ISEB Mngmt Decision p. 4 opportunity to refute Mr. Mansuri’s claims, but if not, the Council recommended that he be treated as a member. (Ex. E12) On June 6, the board voted to reinstate Mr. Mansuri to membership and later made that reinstatement retroactive to make him eligible to run for director in 2013. (See Exs. E40, E15, E21) The ISEB board determined that the Election Committee should not have decided or announced the election results and there would have to be an election (Ex. E21), and on June 18 informed Mr. Mustafa that he had been removed as chair of the Election Committee. (Ex. E19)5 By this time, it was not possible to send out the ballots and hold the election along the usual time lines before July 1, and the holy month of Ramadan further delayed the election. On June 23, outgoing board president Wajahat Abdulla notified the community that the election would be delayed and circulated a new nomination form. (Ex. E18) On June 25, Mr. Mustafa submitted his resignation from the Election Committee. (Ex. E20) 4. Mr. Abdulla called a meeting of the board for June 27, at which the board passed a resolution to set forth a governing structure pending the new election, directing the six carryover members to continue to run the board. (Ex. D2) Among other things, the minutes reflect: “Dr. Baig will continue to be leading the board as a Vice President and all the upcoming activities including conduct general body meeting, sitting upcoming newly elected directors and facilitating in forming new board and officers.”6 Mohammad Khan was selected as the new Election Committee chair. 5. The 2012-2013 board had placed a number of proposed amendments to the Bylaws on the ballot. (See Ex. A3 p.43) The election on these issues was held in late July 2013 and was announced on July 30. Among the amendments was a change to the arbitration provision. (Ex. A3 p.55) The prior version referred all matters to the Shariah Council of California for determination. The new version referred all religious matters to the Shariah Council and all other matters to arbitration under Code of Civil Procedure §1280 et seq. In April 2014, the Alameda County superior court held that the latter provisions applied to this arbitration. 6. On August 17, 2013, the election for new directors was held. The nomination process had been reopened and a larger number of participants ran for office.7 Of 702 ballots mailed to the membership, 455 were returned. The final tally, as determined by the new chair of the Election Committee, Mohammad Khan, was: Mushtaq Ahmed - 273, Alam Mustafa - 265, Bilal Murtaza - 252, Shahed Javed - 122, Wajahat Abdulla - 107, Waqar Khan - 63, Hazim Refai - 60, Abdus S. Ghazali - 49, and Shahid A. Khan - 49. (Ex. E10) 5 Mushtaq Ahmed objected to this and Messrs. Mohiuddin and Sharif abstained. 6 When quoting board minutes and emails, I have tried to leave the original wording, punctuation, grammar and format. 7 The other three nominees listed with Mr. Mansuri in June were Mushtaq Ahmed, Shahid Ali Khan, and Bilal Murtaza. (Ex. D25) The result of reopening the nominations was that Mr. Mansuri dropped out and six additional candidates joined the race, including Alam Mustafa and the two outgoing board members (other than Mr. Ahmed) who had not been nominated previously. ISEB Mngmt Decision p. 5 7. On August 17, 2013, the Election Committee finalized the count and prepared a tally, which Mohammad Khan provided to the board. (Ex.10) On August 18, Dr. Baig announced to the community the final results as determined by the election committee and declared Messrs. Ahmed, Mustafa and Murtaza elected. (Ex. E1) The same day, Dr. Baig wrote an email to the carryover members and the newly elected members to schedule the first board meeting of the newly constituted board, addressing them all as “respected board members.” (Ex. A20) The agenda he provides includes electing officers; it does not mention “seating” the new members. On August 27, Dr. Baig gave notice for the first new board meeting to be held on August 30 at 7:00 p.m. (Ex. A21) 8. By long-standing practice, at the first board meeting in the new year, the chair of the Election Committee attends and manages the meeting by introducing or welcoming the new members and then conducting the election of the officers, who each year are elected by the board at its first meeting. 9. On August 28, Messrs. Ghazali, Abdulla and Waqar Khan addressed a complaint to Dr. Baig and Raffath Shareef, carryover secretary of the 2012-13 board, about the elections for both the directors and the amendments. (Ex. D23) They specifically asking for an audit of the membership list and alleged that those supported by Messrs. Mustafa and Ahmed and Imam Siraj Desai had special access to member rolls for election purposes. They threatened legal action if their complaint was not acted upon. On August 29, another member, Abdul Adenwala, emailed to selected carryover members of the board also complaining that he suspected the winners had unfair access to member rolls. (Ex. D21) 10. On August 29, Dr. Baig arranged for a meeting of the carryover members with ISEB counsel Omair Farooqui. Apparently, four participated and Messrs. Mohiuddin and Sharif did not, although Mr. Sharif was on the phone. (See Ex. D32) Mr. Farooqui wrote a memo responding to questions and advising that the carryover board could conduct an inquiry into the complaints and then “certify” the election results. (Ex. A22) The memo notes that since the newly elected members terms begin on July 1 according to the Bylaws and that the new board had not elected officers for the year, it must conduct the inquiry immediately. It further advises that the carryover board can conduct business since it included six members, and five is a quorum. In light of the provisions in the bylaws that the new directors’ terms begin on July 1, prior to the first meeting of the new board, it stresses: “Therefore, we recommend that, only administrative/emergency meetings be held with the [carryover board] members. All substantive meetings be held only after the newly elected directors are certified.” The memo does not cite any legal authority or provision in the Bylaws concerning the power to “certify.” 11. Dr. Baig called for a meeting of the carryover board on August 30 at 7:30 a.m. It is not clear what notice was given, although the evidence demonstrates that no notice was given to the three newly elected members.8 The minutes of that meeting appear to quote Dr. Baig as stating: “The question for the current board is whether to certify the newly elected members or conduct an inquiry.” (Ex. D20) The discussion seems to have been phrased as a choice between conducting the inquiry while not allowing the 8 Respondents argue that this meeting was noticed on August 27, citing Ex. A21, but as noted above that notice was for 7:00 p.m., not 7:30 a.m. The three new members were not given notice of the August 30, 7:30 a.m. meeting. ISEB Mngmt Decision p. 6 new directors to participate in the board, or not conducting the inquiry at all.9 The minutes go on to record a somewhat contentious discussion. Ultimately, four members voted to conduct an inquiry before certifying the election results and allowing the new members to participate: Dr. Baig, Jamal Qureshi, Rehana Markar and Raffath Shareef. I refer to these four as the Baig board. Two votes were recorded as abstentions, by Qadir Mohiuddin and Fazale Sharif. Mr. Mohiuddin reportedly said: “No inquiry based on six board members. All nine board members will sit together and decide tonight.” (Dr. Baig’s prior notice to all nine board members was for a meeting that same evening. (Ex. A21)) Mr. Mohiuddin also argued that seating the three newly elected members immediately was necessary to avoid divisions, and stated he opposed the inquiry before he walked out. This was the last time the six members of the carryover board met together. There was evidence about prior practices of the board responding to complaints about elections. There was no evidence that the board had ever reviewed an election, certified the results, or delayed allowing any newly elected members to participate in board activity. No one disputed that preventing newly elected board members from participating was unprecedented at the ISEB. 12. Messrs. Mohiuddin and Sharif gave the required 72-hour notice to all nine board members for a meeting for September 3. (Ex. A47) Under the Bylaws, any two directors can notice a special meeting. (Art. V §3, Ex. A3p.23) The Baig board did not attend, leaving Messrs. Mohiuddin and Sharif and the three newly elected members. At this meeting, the attendees elected Mushtaq Ahmed president. (Ex. A50) These five I refer to as the Ahmed board. The Ahmed board believed it had a five member majority and tried to assert control over the organization. 13. From this point on, there were exchanges between the attorneys for the contestants and various flurries of litigation. The parties generally took the same positions then as they take now concerning the rectitude of their own and the others’ conduct. There were also a series of disputes over control of the ISEB bank account, the notice board, the committees, access to meeting rooms, and the like. The impression left on the arbitrator is that it was a difficult period for the organization given the split among board members. As these matters do not bear on the result, the details will not be discussed further. 14. The Ahmed board had a series of meetings in September and early October, inviting the Baig board members to attend, which they did not. The Ahmed board voted to conduct an independent inquiry of the complaints on September 8, but apparently they did nothing other than rely on the investigation being conducted by the Baig board. Since Mr. Ahmed was later found to be ineligible to run for reelection by the court in November, Petitioners concede that the Ahmed board lacked a quorum for any of its actions and do not claim any of those actions were valid acts of the board. 9 Later on August 30, Robert Arthur, an attorney acting for some or all of the Petitioners at the time, wrote Dr. Baig reinforcing the point that the investigation could continue while the newly elected members participated in board activities. (Ex. A18) ISEB Mngmt Decision p. 7 15. Meanwhile, the Baig board had no further meetings until late September. They testified that they were attempting to have the Election Committee chair and the Membership Committee chair, Hamid Ali, meet to resolve any questions about the list of members eligible to vote, and Mr. Ali was uncooperative. They accuse the Ahmed board members of obstructing their efforts.10 In any case, on September 26, Dr. Baig announced to the community that the Election Committee chair had compared the membership list with ISEB’s CPA records of payments and “concluded that a total of 105 votes were improperly cast.” (Ex. A41) He called for a meeting of the board to discuss how to respond to this information. As discussed below, this conclusion proved to be untrue. There was no discussion in this email or in the subsequent board minutes of the arithmetical fact that even if all 105 suspect votes were found to have been invalid and were discarded and had all been for the top vote getters, the same three candidates would still have received the highest number of votes and would be elected. See ¶6 above. 16. On September 26, Dr. Baig noticed the meeting for September 29 and gave formal notice to the six carryover members and to the community subscribed to the ISEB google groups listserve (hereafter “google groups”). (Ex. D3)11 Messrs. Mohiuddin and Sharif did not appear, leaving only four attendees, short of the five necessary for a quorum under the bylaws. (Art. V, §2, Ex. A3p.23) The minutes of the meeting acknowledge the lack of quorum and report that Hamid Ali and Mohammad Khan, the chairs of the Membership and Election committee respectively, agreed to conduct an inquiry into the member list. (Ex. D29) Mr. Farooqui wrote an email to Messrs. Mohiuddin and Sharif confirming that they did not participate. (Ex. D6) 17. Within hours of the first special meeting, Dr. Baig gave notice in the same way of a second special meeting for October 2 with the minimum 72-hour notice. (Ex. D4) The agenda was to discuss the 10 There is an email from Mr. Ahmed to Mr. Ali on September 4 directing that he not share records with any board member. (Ex. E17) Mr. Qureshi testified that he was told by Mohammed Khan that Mr. Ali mentioned the email in explaining his inactivity. Neither Mr. Khan nor Mr. Ali testified directly on the subject. 11 There were a number of disputes about whether board members and other members of the ISEB community received announcements through distribution on certain subgroups of email addresses or on the community googlegroups listserve. Qadir Mohiuddin, Fazale Sharif, Bilal Murtaza and Mohammad Khan testified that they were not on the google groups list. No clear testimony was provided concerning who received emails from any of these groups. Whether or not the three newly elected members received or saw a notice for the board meetings called by the Baig board, it is undisputed that the Baig board had no intention of permitting the new members to participate as board members until after the inquiry was finished, and the notices were for meetings of the “existing six members.” (Ex. D3, D4, D31) While Respondents argue that they could have “participated” by attending as members of the community, this is not equivalent to being invited to act as elected board members. The arbitrator concludes that the three new members were not given proper notice of a board meeting before the October 10 scheduled meeting, which will be discussed further in the text. ISEB Mngmt Decision p. 8 investigation and response to it. Once again, the same four members appeared and the same two did not. (Ex. D30) The meeting was adjourned when service of one of the lawsuits was executed during the meeting. It is not clear what the purpose of the meeting was since the investigation by Mr. Ali and Mr. Khan had not yet occurred. On October 3, Dr. Baig wrote an email to Messrs. Mohiuddin and Sharif warning them that if they did not attend the next meeting the Baig board would invoke the provisions of Article IV, Section 4.b.3 of the Bylaws. (Ex. D10) That provision permits the board to declare a board member’s office vacant if he “fails to attend three consecutive meetings, without permission of the president.” (Art. IV, §4.b.3, Ex. A3p.23) 18. On October 3, Dr. Baig gave notice in the same way of a third special meeting for October 6, at 1:30 p.m., again to discuss the investigation and the appropriate response. (Ex. D31) In the morning of October 6, Messrs. Ali and Khan met and went over the records, concluding that 104 of the questionable 105 voters were indeed eligible. The CPA records, which Mr. Khan described as confusing, needed to be reconciled with variations in the names of members based on spelling, reversing the order of names, and inclusion by members of the community of additional names in some contexts but not in others (adding “Mohammad” at the mosque but not on checks, for example). All of the names were reconciled with the donor list, but they found one case in which they could not locate the original membership application. There followed a flurry of emails among the board members. (See Ex. D32) At 11:37 a.m., Mr. Qureshi wrote to all nine members asking that Messrs. Mohiuddin and Sharif attend to form a quorum so the findings of the investigation could be confirmed. (Ex. D19p.2) At 12:36 p.m., Mr. Mohiuddin wrote back that his attorney had previously written to Mr. Farooqui that he and Mr. Sharif “are intentionally not attending the Special meeting called by Dr. Baig because you 4 directors are refusing to accept the 3 elected members.” (Ex. D19p.1) At 1:17 p.m., Mr. Qureshi responded that “we are not refusing we are accepting the findings ... . Please attend today’s meeting to validate results.” (Ex. A28) The two did not attend the 1:30 p.m. meeting. 19. At the October 6 meeting, the Baig board heard the report of Messrs. Ali and Khan and confirmed the August election of the three new members. (Ex. D32) The next paragraph reads in full: “The Board next considered the absence of Brs. F. Shareef and Q. Mohideen from the Special Meeting. The Board will submit these meeting Minutes for their ratification prior to the First Meeting of the New Board, consisting of 9 members, at which Officers will be elected.” The minutes say nothing about removing Messrs. Mohiuddin and Sharif or declaring their seats vacant. The other evidence on this subject is confusing and conflicting, and hotly disputed. While the minutes say nothing about any vote being taken or decision being made in this regard, the reference to “ratification” indicates that some action was taken.12 12 There is an array of evidence on this point, some but not all of which will be included in the text. One comparatively neutral witness, Syed Sarwat, attended the October 6 meeting as a community member and testified that the board discussed the absence of the two members and voted on their removal. He was not present at the October 16 meeting, so this was not a matter of confusing the two meetings. ISEB Mngmt Decision p. 9 As will be more fully explained in the Explanation of Decision section below, I find that the Baig board did discuss removing Messrs. Mohiuddin and Sharif, but did not actually resolve to remove them at the October 6 meeting. Instead, the board deferred the decision to be ratified later and the two were removed at the next meeting, which ultimately took place on October 16. The minutes conclude by directing Mr. Khan as Election Committee chair to call the first meeting of the new board for October 10. 20. In the evening of October 6, Mohammad Khan sent an email to all nine members inviting them to a meeting on October 10 “including the new elected members to seat them in the board.” (Ex. A28) He was present at the October 6 meeting and but did not indicate in any way that Messrs. Mohiuddin and Sharif had already been removed, and included them on his email as board members. In the morning of October 7, Respondents’ counsel Omair Farooqui telephoned Fazale Sharif, the contents of which Mr. Sharif confirmed later that day in an email: “Thank you for your call this morning, it is nice to know that 4 board members have agreed to include all 9 directors in a full board meeting.” (Ex. D32p.5) It is not clear whether Mr. Farooqui was actually present at the meeting; Ms. Shareef testified that he was not, although a “Farooqui” is listed as attending on one form (Ex. D32p.1) but not on another. (Ex. E30) On October 7, Mr. Mohiuddin responded to Mr. Khan’s email, thanking him and putting forth his own agenda for the October 10 meeting, including “Review of the Board Meeting date 9-3-13.” (Ex. A48) That was the meeting of the Ahmed board at which Mr. Ahmed was elected president. 21. On October 8, at 1:39 p.m., Dr. Baig wrote an email to the community through google groups and to most if not all nine directors, and certainly including Messrs. Mohiuddin and Sharif, announcing that the board had accepted the results of the Hamid Ali-Mohammad Khan inquiry, and discussing the board meeting set for October 10 when the three new members “will be announced as Directors and Officers will be elected.” (Ex. A39) The email/announcement ended: “All members are requested to join, Insha Allah. May this be an opportunity to bring the community together, Insha Allah.” There is no mention of the removal of Messrs. Mohiuddin and Sharif. 22. On October 8, at 4:22 p.m., Waqar Khan responded to an email from Mr. Mohiuddin addressed to Mr. Khan and many others, telling him that he and Mr. Sharif had been “sacked.” (Ex. D32p.3)13 This led to efforts by counsel for Petitioners, Robert Arthur, to confirm with Mr. Farooqui whether that the two had been removed. (Ex. E32p.1) Mr. Arthur also informed Mr. Farooqui that he had advised the Ahmed board to attend the October 10 meeting. Mr. Farooqui apparently did not respond. At this point, given both Mr. Mohiuddin’s October 7 email and Mr. Arthur’s communication to Mr. Farooqui, the Ahmed board had made it clear that it would attend the October 10 meeting noticed by the 13 Mr. Mohiuddin testified that he understood that he had been “sacked” at the October 6 meeting, apparently as a result of Mr. Khan’s email, and Mr. Ahmed testified that he understood the two had been removed sometime before the October 16 meeting, again perhaps because of that and Dr. Baig’s October 13 email discussed in the text. ISEB Mngmt Decision p. 10 Baig board so that all nine directors could have their first board meeting together. None of the Baig board members nor their counsel responded to these communications. 23. On October 10, in the afternoon prior to the scheduled evening meeting, Mohammad Khan sent an email canceling the meeting due to a health problem, which he testified was a bad back. (Ex. E14)14 24. On October 10, at the time and place set for the meeting in Mr. Khan’s October 6 email, the Ahmed board met, but the Baig board did not appear. (Ex. A54) The minutes for the meeting indicate that the Ahmed board was responding to the notices sent by Messrs. Khan and Mohiuddin and Dr. Baig referred to in paragraphs 20 and 21. The board members present concluded that the three newly elected members should not have been excluded pending the investigation, that their board’s actions from September 3 forward were valid, and that the actions of the Baig board, which lacked a quorum, were not. Prior to October 10, the Ahmed board had conducted a number of meetings at the ISEB premises and at least one was on the same day as the Baig board, but never before had they appeared at the time and place noticed by the Baig board. (See Ex. D18) 25. On October 13 at 6:05 p.m. (Ex. A30), 15 Dr. Baig wrote an email entitled “Notice of a Board Action 10.13.2013" directed to Messrs. Mohiuddin and Sharif (and copied to the rest of the nine directors, but not to the community through google groups) informing them that their board positions had been declared vacant for failing to attend meetings, for violating the August 30 resolution to conduct a fair inquiry, and for intentionally boycotting meetings to prevent a quorum being formed. He stated their positions would be filled at the next board meeting.16 26. On October 13, at 6:06 p.m., Dr. Baig gave notice of a meeting for October 16 to the seven directors other than Messrs. Mohiuddin and Sharif and to the community through googlegroups, and describing the agenda as to seat the three new members. (Ex. A40) 27. At the October 16 board meeting, the three newly elected members chose not to attend, and neither did Messrs. Mohiuddin and Sharif. (Ex. A15) The Baig board reviewed the history of Messrs. Mohiuddin and Sharif’s attendance and the relevant provision of the Bylaws. The Minutes state: “The ISEB Board of Directors invoke [the Bylaws] and declared the two positions occupied by Messrs. Mohiuddin and 14 Mr. Khan testified that he preferred the Baig board to the Ahmed board. Petitioners wonder whether his illness was fabricated to avoid holding the meeting. I find that it was not. 15 There is another version of the same email which shows it was sent on October 14 at 6:35 a.m. (Ex. D11), but I find this to be illogical and since one of them is incorrect, I rely on the earlier time. 16 As mentioned, Dr. Baig was not entirely consistent in his testimony about this, and in his initial appearance could not explain the date on the email header. He did testify that he did not recall any discussions among Baig board members between October 6 and October 13 about removing the two directors. Another member of the Baig board, Rehana Markar, could not recall anything about the email. ISEB Mngmt Decision p. 11 Sharif in the official ISEB Board as vacant, due to the following reasons,” and listed the same three reasons as in the October 13 email. (The inconsistent tenses are in the original.) In the language of the Minutes: “ISEB board proceeds with filling the two open vacancies.” It did so by inviting the next highest vote getters in the August election. According to the Minutes, Mr. Javed declined the offer to join the board,17 and Messrs. Abdulla and Waqar Khan were appointed. With a quorum of six present, the officers were elected and Waqar Khan was unopposed as president. 28. There were further meetings on October 27 (Ex. E35) and November 17 (Ex. D13). At the November 17 meeting, the third meeting at which Messrs. Mustafa and Murtaza were given notice but failed to attend, they apparently were removed. There is no record of a vote and the language is unclear: “There are two ISEB board of director position remain open resulting from ... [Messrs. Mustafa and Murtaza] failed to attend board meetings.” In any case, the board added Abdus Ghazali as a replacement member and put off selecting another replacement until the next meeting. 29. On November 26, the Alameda County superior court ruled that Mr. Ahmed was ineligible to run for election in 2013 and his standing as director was void ab initio, i.e. from the beginning, such that none of his acts as a director were valid. (Ex. B8). The court ordered a new election to be held “to fill the remaining term of the directorship position formerly held by Mushtaq Ahmed.” 30. At some time during these months, the Waqar Khan board apparently made some changes to membership rules. There are limited references in the board minutes in evidence showing any resolutions passed. In the October 27 minutes, the board approved the following: “To avoid any future issue of membership name publication, Board decided to develop a new form and get the waiver.” Messrs. Qureshi and Wajahat were delegated to develop the form. (Ex. E35p.3) The discussion of this issue on November 17 was: “Majority of Board of directors discussed and approved following for the current and upcoming membership geography locations. ... All Life time members remain untouched irrespective of their geographical locations. ‘They remain members for life.’” (Ex. D13)18 Ultimately, no waiver was included on the form (Ex. A3p.63) and no geographical restrictions were ever imposed. Nonetheless, these are the only references to the new membership rules in the board minutes in evidence. 31. On November 28, 2013, Waqar Khan wrote an email to a large group of members, although not to the ISEB google groups listserve, stating that the board was cleaning itself of the “ghost list” for the 17 Mr. Javed did not sign the attendance sheet and therefore apparently was not there. (See Ex. D12.) It seems probable that one or more of the Baig board members discussed the matter before the meeting. Although none of the witnesses testified at any great length about discussions outside of board meetings among the various factions, one would expect such conversations to have taken place. 18 Under the ISEB Bylaws, life members are those who have donated a cumulative amount of $25,000 towards construction or operations. (Art. II, §1.g, Ex. A3p.19) Life members do not have to donate each year to remain members. ISEB Mngmt Decision p. 12 2013-14 election. (Ex. E24p.6)19 “All old membership lists have been ‘NULL & VOIDED’. The election will be held at the ISEB campus,” requiring in-person voting with picture identification. (All caps and quotes in original.) Mr. Khan reports that the board also approved a new application and accounting procedures; the application must be returned by December 31 for the member to be eligible to vote. Later evidence and the membership form itself made it clear that the accounting change mentioned was to require payments as membership dues rather than to other accounts for a member to be eligible to vote, with the payment to be made by check or, if cash, with a receipt attached to the application. (See Ex. A3p.63) According to another Waqar Khan email of November 28, these changes were made pursuant to a discussion after the last board meeting, presumably the November 17 meeting. (See Ex. E42) This second email included a provision: “MEMBERSHIP WILL ONLY BE FINAL ONLY (sic) AFTER BOARD REVIEW AND APPROVAL.” (All caps in original) 32. According to a January 20, 2014, email from Waqar Khan, “we” (presumably the board, but again there is no record of board action) extended the verification process for existing members until January 31. (Ex. E42).20 33. On February 4, 2014, the Alameda County superior court ruled on an application for a temporary restraining order concerning the ISEB election scheduled for February 9 to fill the seat formerly held by Mushtaq Ahmed. (Ex. C5) The court ruled that ISEB could not condition voting on submission of an updated verified application, but could require members to appear in person with photo identification to vote. The parties disputed what the judge said orally that is not reflected in the written order. In the absence of a transcript, the arbitrator does not find testimony about what the judge said as convincing proof of a judicial order. 34. The next board meeting for which minutes were submitted into evidence was on March 2, 2014. (Ex. D14)21 Just before this meeting, Waqar Khan resigned from the board. At the meeting, he was 19 Respondents, in particular Waqar Khan, repeatedly stressed concern about so-called “ghost voters,” apparently people who were used by his political opponents solely to vote in elections without actively participating in the mosque, or entirely fake identities his opponents used for mail-in voting. None of the evidence presented strongly supports the existence of any substantial number of such people, if there were any, and even ghost voters would have to contribute to the ISEB every year. In any case, even if this were established to be a substantial problem, there were ways to have dealt with it besides expunging the membership. Indeed, requiring in-person voting with identification, as permitted by the court and not challenged by this arbitrator, appears to be sufficient. 20 Several witnesses testified about members being told they had to return the new application by December 31 and when they did not, they were excluded from membership. There was no evidence of any member submitting the application between December 31 and January 31 but being excluded. 21 It appears that this was the next board meeting after November 17, 2013, since it is at this meeting that another director was appointed and no other minutes were provided. ISEB Mngmt Decision p. 13 reappointed to another seat with a longer remaining term (until June 2016), and then reelected as president. In other words, the board used a manoeuver to extend the period in which Mr. Khan continue as director without having to run for election by the membership. Israr Khan was appointed as director to fill the seat vacated by Mr. Khan. 35. Also at the March 2 board meeting, Mr. Abdulla as secretary “informed that minor errors were made in the recording of October 16th 2013 Board Meeting and November 13th (sic) 2013 Board Meeting.” (Ex. D14) The board authorized the secretary to change the minutes “specifically including the ratification of the declaration that the director positions of Qadir Mohiuddin, Fazale Sharif, Alam Mustafa, and Bilal Murtaza being declared vacant ... for unexcused failure to attend three consecutive duly noticed Board of Director meetings,” and also ratifying the board appointments which had occurred to date. No different version of those 2013 minutes was introduced into evidence, and so it remains unclear whether the versions in evidence were those altered after this resolution, or whether the board relied on the resolution alone without actually changing the earlier minutes. 36. In March 2014, Mr. Qureshi (in effect acting for all Respondents) filed his Verified CrossComplaint in the Petition for Arbitration action, in which he states that the positions of Messrs. Mohiuddin and Sharif were declared vacant at the October 16 board meeting. (Ex. A4 ¶9) The complaint was declared true and correct under penalty of perjury by Mr. Qureshi. Mr. Qureshi was the acting chairperson for the October 6 meeting. (Ex. D32) The Alameda County superior court presumably relied on this statement when it found that the removal occurred on October 16 in granting the petition for arbitration. (Ex. A10)22 37. On April 27, the election to replace Mushtaq Ahmed was held. (Ex. A42) The Alameda County superior court ordered this election “to fill the remaining term of the directorship position formerly held by Mr. Ahmed.” (Ex. B8) Mr. Ahmed was elected in 2013, so his term would expire in June 2016. According to Vazir Mansuri, who was appointed membership chair by the Waqar Khan board, the election committee used the 2013 membership list. According to Waqar Khan, over 400 ballots were sent out and 225 ballots returned in an election conducted entirely on site with identification required. (Ex. A42) Enus Mea won. According to Mr. Mea, he was told by Waqar Khan on May 1, at his first board meeting, that his term would end on June 30, apparently because he had not filled out the new membership application. (Ex. A43) 38. Referring to the upcoming June 2014 election, Waqar Khan wrote an email on May 26, 2014, to respond to a question about why Fazale Sharif was no longer considered to be a member. (Ex. A14) He states that 472 previous members received the new application, and were told that they needed to fill it out and pay membership fees. Mr. Sharif had not done so, and therefore was not a member. Similarly, in April, 2014, there was a question about whether Mushtaq Ahmed had made a donation in 2013 because he was 22 Respondents argue in their post-trial brief that the court’s finding on this point should not be considered binding in this proceeding because there was no evidentiary hearing before the court. It is true there was no live testimony, but it is also true that both sides represented in pleadings that the operative date was October 16, and it appears that the court relied on those representations in making a factual finding that was significant to its ruling. In any case, the arbitrator makes the factual finding based on all the evidence presented at the arbitration hearing, and does not simply rely on the court’s finding. ISEB Mngmt Decision p. 14 seeking a nomination form. The accountant confirmed that he did on December 4, 2013, and the check was deposited in the operations account. (Ex. F4) Waqar Khan directed that Mr. Ahmed be told: "I can not see evidence of your payment in the membership account established at the end of November Or the 'revised membership' application approved by the court in April filled out ... . However, We are investigating other accounts for your membership fees status." (Ex. F5,6)23 39. Prior to the June 2014 election, those members who had not filled out the new applications were removed from the membership rolls and accordingly were not given nomination forms or ballots, were not permitted to be nominated, and were not permitted to vote. (See Exs. A44-45) The evidence established that a number of people seeking nominations were excluded because they failed to fill out the new application form. According to a May report of Vazir Mansuri, then the Membership Committee chair, there were only 76 members eligible to vote. (Ex. E41) 40. The general body meeting was held on June 28. (Ex. E38) There were 38 members present (Ex. E41), 50% of the current membership which meets the 1/3 quorum requirement. (Art. III, §2.e.v, Ex. A3p.41)24 Among other things, the members voted to suspend the Bylaw amendments passed in 2013,25 validate the current member list and the board resolution to verify members’ addresses, require official ID’s and update and revise the membership form. (Ex. E38) As noted above, there is no such board resolution in evidence. The members also voted to declare the Ahmed board meetings invalid, and to ratify the Waqar Khan board’s acts in removing and replacing board members, barring board members from continuing their term if they failed to fill out the new application form, and removing members who failed to submit the new application. 23 It is not clear whether any members who filled out the new application form were barred from voting because they had made donations to the operations or construction accounts rather than into the membership account established in November. 24 As discussed more fully below in the notes in Section 3 under Explanation of Decision, Petitioners supplied a post-hearing examination of the Respondents’ list of members eligible to vote in the 2014 election (Ex. 41), and found 49 of the 76 had not paid dues reflected in the CPA lists. The arbitrator compared these names to the attendees at the 2014 annual meeting and found seventeen on the “no donation” list attended the meeting, as well as one whose name is spelled as a variant and may or may not be on the list. There was one additional name of an attendee (Nayyar Khan) who does not appear on the membership list but is listed as a member at the meeting; that name also does not appear on the donor list. For the reasons discussed in Section 3, there is no reason to delve into this further except to note that there is a question whether there were as many as 76 people who had filled out the new application and paid dues, and whether there were more than 19 or 20 valid members attending the annual meeting. 25 One of the 2013 amendments that passed required directors to have been members for one year, rather than for at least six months. Emails between Waqar Khan and then Membership Chair Vazir Mansuri reflected that two of the nominees for board election did not meet the new requirement. Waqar Khan indicated that the rule would be retroactively changed at the general body meeting. (Ex. F8) ISEB Mngmt Decision p. 15 41. The directors election was held on June 29. Three new directors were elected as well as two replacement directors to fill the positions of Rehana Markar and Enus Mea (Exs. A 56, E36), whom the board removed because they had not filled out the new application form. Voters were required to appear in person with official photo identification showing an address, that would be verified. (Ex. E36) Five candidates ran for the five open positions, apparently after having coordinated who would be running for which seats. 42. During the July 8, 2015 hearing, further evidence about the numbers of potentially eligible voters was presented. To establish a list of members who had application forms on file, Petitioners relied on the 2013 membership list as audited by Mohammed Khan and Hamid Ali in October, 2013, as well as a file of application forms which Mr. Ali gave Vazir Mansuri, his successor as membership chair, in November 2013 which were not acted upon as the board required a new application form to be filled out. (Ex. F10)26 This starting point included only those members who had filled out the old application form. Petitioners compared that list with lists of donors prepared by ISEB's accountant for 2013 and 2014 (i.e., members who donated to operations, construction or as membership dues27 in each of those years, which would make them eligible to vote in elections the following year). By Petitioners' count, 481 persons should have been eligible to vote in 2014 and 257 persons should have been eligible to vote in 2015. Of the 481 on the 2014 list, 30 filled out new application forms and so were permitted to vote in 2014. Of the 257 on the 2015 list, 70 had filled out new applications and would be permitted to vote under the Waqar Khan board rules in 26 At the July 8 hearing, Respondents presented hearsay evidence in the form of letters from handwriting experts that certain signatures may have been forged. This evidence was inconclusive for a number of reasons, including that the exact signatures that were being challenged were not in evidence. Generally, these reports concerned approval signatures purporting to be that of Hamid Ali on some membership applications, although one of the problems is that it is not always clear what documents the examiners were considering. Ultimately, the reports seem to refer to two clear cases and perhaps five other cases which the examiners found suspicious, suggesting that someone had forged Mr. Ali's approval signature on applications or changes of address. Mr. Mansuri testified that he asked Mr. Ali generally about the application forms he maintained, and he said that he signed them. And he apparently treated them as valid because the documents were found in the files that he maintained as membership records of ISEB. I find no significance to these reports in the absence of a clear connection to specific member applications, and without anyone checking with Mr. Ali on the specific signatures in question. Respondents did not question Mr. Ali about any specific signatures when he testified at the arbitration. Respondents also put into evidence the double hearsay letter from Vazir Mansuri reporting on a handwriting report concerning protest declarations. This portion is disregarded because it is double hearsay and because those protest declarations played no part in my ruling. 27 Ironically, there was no separate account for membership dues. Instead, these donations were deposited in the operations account. According to the CPA, and his records (Exs. F15 & 16), donations were recorded noting information from the “memo” line of the check or receipt under a column labeled “Account” and deposited into either the operations or construction accounts (or other accounts which do not count for membership) listed under a column labeled “Class.” ISEB Mngmt Decision p. 16 2015. Subsequent to the hearing, Petitioners noted that they had omitted from their list the 35 life members, as well as a few additional members on the 2014 list and 105 on the 2015 list. Respondents prepared a list of eligible voters for 2015 based on those who filled out either application form and had made donations to operations, construction or as membership dues. Respondents' list showed 163 persons who had made donations and had only the old application form on file, and 182 who had made donations and had the new application form on file (these may also have had the old application form on file). 43. Subsequent to the July 8, 2015 hearing, the arbitrator directed counsel for the parties to meet and confer to try to agree on a list of eligible voting members for each of the two years based on the arbitrator's Interim Decision. They did not do so, instead filing separate voting lists with substantial variance in their numbers.28 After a review, I determined that I would not be able to determine the accuracy of these voting lists. Relief Requested by the Parties Petitioners seek the following rulings from the arbitrator: 1. That the newly elected directors should not have been excluded from running the business of the ISEB by the Baig board. 2. That the Baig board never constituted a quorum and was illegitimate.29 3. That the Baig board’s effort to remove Messrs. Mohiuddin and Sharif had no legal effect. 28 For the election for the 2014 seats: Petitioners’ list presented after the July 8 hearing - 517 with the old form on file and 29 with the new form on file; Respondents’ counsel’s list presented after the July 8 hearing - 244 with either form on file. For the election for the 2015 seats: Petitioners’ list after the July 8 hearing - 224 with the old form on file and 174 with the new form on file; Respondents’ list presented after the July 8 hearing - 163 with the old form on file and 182 with the new form on file. Respondents’ lists were prepared differently, for the 2014 election by counsel, for the 2015 election by the clients. Note that Petitioners’ lists after the July 8 hearing included the 35 life members, which explains most of the discrepancy. Petitioners’ lists also include the number of donors who did not have an application on file: 172 in 2014 and 163 in 2015. 29 The First Amended Petition included a request for rulings that the Ahmed board was legitimate and the special meeting of September 3, 2013 was properly noticed and valid. The arbitrator understands that these requested rulings are not currently being sought in light of the court’s ruling that Mr. Ahmed’s election in 2013 was invalid because he was term-limited out. ISEB Mngmt Decision p. 17 4. That the Baig’s board efforts to appoint replacement directors was invalid and those purported replacement directors were never directors. 5. That those portions of the amendments to the Bylaws which were declared passed by the Election Committee on July 30, 2013, are now part of the Bylaws. 6. That the Waqar Khan board’s acts to cancel existing memberships, including by requiring new applications and applying only payments for membership fees, were null and void. 7. That the Waqar Khan board’s acts in changing election procedures are null and void. 8. That all acts of the Baig board and the Waqar Khan board are null and void and without legal consequence. Respondents seek the opposite rulings, and raise the issue of the removal of Alam Mustafa and Bilal Murtaza as well. Explanation of Decision The purpose of this section is to discuss at greater length some of the reasons for the judgments expressed in the following section entitled Conclusions of Law. 1. The ISEB Board Had the Power to Refuse to Permit Newly Elected Directors to Act as Directors While an Election Inquiry Was Being Conducted There is no dispute that the board had the power to conduct an inquiry into the August 2013 election. There were complaints about the conduct of that election, and Petitioners agree that the board was within its authority to investigate whether there was a basis for those complaints. Even with the new directors on the board, the investigation could have proceeded just as it transpired without the new directors having any authority over its conduct, as interested members. The disagreement is whether the carryover board members could block the participation of the newly elected board members while the inquiry took place. Petitioners argue that the Bylaws do not provide for any certification, approval, or other review by carryover directors of the election of new directors. Respondents dispute this and also argue that it is within the scope of the general authority of directors acting in the best interest of the corporation to review an election where there are substantial complaints about it. The law provides little guidance on this question. The Bylaws do not suggest that the board has any power to block the participation of directors who are declared the winners of an election carried out in conformance with the standard practices of the ISEB. ISEB Mngmt Decision p. 18 Usually, elections are held by June 30. (See Art. IV, §2.c, Ex. A3p.22) The directors' terms begin on July 1, before the first board meeting of the new year, and end on June 30. (Art. IV, §2.b, Ex. A3p.22) The Election Committee is given authority to invite nominations and determine nominees’ eligibility. (Art. IV, §2.d, Ex. A3p.22) The practice of ISEB has been that the Election Committee distributes, collects and counts the ballots, and announces the results to the board and the community. Dr. Baig, as the ranking member of the carryover board, acted consistently with this practice in August 2013 when he announced the victors to the membership. The practice of the ISEB, and the intent of the Bylaws, is that newly elected board members join the board for its first meeting, at which the business of the board for the new year can begin. At the first board meeting of the year, the officers are elected (Art. VI, §2, Ex. A3p.26), and the board can make rules governing its meetings. (Art. V, §8, Ex. A3p.24) Three directors from the prior year have lost their position as of June 30, before that first board meeting, as the board recognized at its June 27, 2013 meeting. The Bylaws give the board authority to remove directors for various reasons (see Art IV, §§3, 4.b, Ex. A3p.22-23), but nowhere do the Bylaws indicate the board has the power to decide whether an elected director is permitted to join them. The parties differ on the inferences they draw from these removal provisions. One of the grounds for declaring a director's seat vacant is if the director "does not accept the office either in writing or by attending a meeting of the Board of Directors, within thirty days of [the] election." (Art. IV, §4.b.3, Ex. A3p.23) The arbitrator draws the following inferences from this: the first meeting of the board at which the new director will participate is expected to be within 30 days of the election, and the director occupies the seat even before "accepting" the office by appearing at that meeting, otherwise there is no reason to declare the seat vacant. Respondents argue, and presented some testimony, that the custom of the organization was that the chair of the Election Committee would invite the newly elected members to their first board meeting and “seat” them before they participate. They also rely on the use of that term in the June 27 board minutes. (Ex. D2) This evidence is not persuasive. Essentially, the new board members are given notice of the first meeting (as Dr. Baig did in August 2013), they appear, and the Election Committee chair conducts the election of the officers of the organization. There was never a prior occasion when the board prevented a newly elected member from participating, despite there being prior complaints about elections. And all the correspondence in August 2013 before the complaints were received referred to the new members as directors, not as directors requiring confirmation. Accordingly, I conclude that the intent of the Bylaws is that a newly elected director is expected to participate in the first meeting of the board of directors that occurs after July 1, just as was the apparent intent of Dr. Baig immediately after the 2013 election and before receiving the complaint. Moreover, there is no screening process referred to in the Bylaws, whether termed "seating" or "certifying" or otherwise, by which the incumbent directors have the power to prevent newly elected members from participating in the first meeting of the board. Respondents argue alternatively that directors have the power to “certify” the election within the scope of their general power under California Corporations Code §300. They argue that in this case they acted in the best interests of the organization to treat complaints respectfully, to verify that board members ISEB Mngmt Decision p. 19 have won their seat legitimately before allowing them to participate, and to assure that the membership respects the legitimacy of the board. The arbitrator finds these are legitimate concerns. While the Bylaws do not anticipate that there will be any delay in the participation by newly elected directors, Bylaws cannot anticipate every possible event. The Bylaws are not worded to bar any inquiry by directors into an election before the first meeting of the board. If the election were held before June 30 and the investigation could be completed before the first board meeting, there would be no conflict. One can imagine a variety of complaints of behavior that so undermined the legitimacy of an election that conducting an inquiry before allowing the victors to participate would be understandable. It is also true that in this case those who complained about the election proved to be the political allies of the four carryover board members who voted not to allow the newly elected members to participate, and were eventually appointed to the board to replace their political opponents. Indeed, Respondents structure their argument around describing this case as their struggle to overcome the corruption of the Petitioners, suggesting that the latter acted as an organized faction from before the 2013 election was held and throughout the other events described.30 This raises the prospect of a challenge to an election being used as a political device to prevent a change in the balance of power on a board, in itself a reason not to permit the board to evaluate the elections of other board members. Moreover, there had been complaints in prior years, apparently of the same nature as the complaints in 2013, which did not cause any delay in the participation of board members, so the practice of the ISEB was not to delay. The case law cited by counsel or found by the arbitrator is not decisive. In Musicians Club of Los Angeles v. Superior Court, 165 Cal. App. 2d 67 (1958), the Bylaws of the organization provided that the highest vote getters among candidates for election to the board "shall be declared duly elected by the incumbent Board of Directors at its next meeting, and shall immediately on the result of the vote being announced take their seats as Directors of the Corporation for the ensuing term." The carryover president, who had not been reelected and whose term accordingly had expired, cancelled the board meeting. The winners of the election then were expelled from membership in the union (a separate, related organization to the Musicians Club), which was a necessary qualification for election. The winners were ruled to be ineligible as a result. The court concluded that "it was the duty of the old board acting as an election board to declare the results of that election. Their duties in this regard, there being no question as to the validity of the election ..., were purely ministerial." 165 Cal. App. 2d at 72. The court ordered that the newly elected members constituted the board. While it is not binding law since it is not necessary to the ruling of the court in the case, the reference in Musicians Club to the validity of the election does support the notion that there are circumstances concerning an election that may justify board action even where the Bylaws anticipate that the incumbent board will have only ministerial duties, as is the case with the ISEB Bylaws. 30 Respondents and their allies held six seats on the 2012-2013 board, Directors Abdulla (president), Baig, Shareef, Qureshi, Markar and Waqar Khan, while Petitioners’ faction had three seats: Mohiuddin, Sharif and Ahmed. In other words, Respondents were in a position to take whatever actions to reform election rules they wished during that term without challenging or delaying the results of an election. ISEB Mngmt Decision p. 20 For nonprofit corporations with religious purposes, like ISEB, directors' conduct in connection with the election of directors is governed by Corporations Code §9241. Cal. Corp. Code §9242. Section 9241 requires directors to perform their duties "in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as is appropriate under the circumstances." §9241(a). The director may rely on the advice of experts, including counsel. §9241(b)(2).31 Here, counsel advised the board on August 29 that it would be permissible to conduct an investigation before allowing the newly elected members to participate. They were advised to carry out the investigation as quickly as possible, and there is no evidence that they delayed that process. In these circumstances, the arbitrator concludes that their initial decision was “in good faith” under the statute. Accordingly, while the circumstances certainly did not require that the newly elected board members be barred from participating in board business, and doing so did contradict the intent of the Bylaws, the board did not act beyond its powers in voting to hold off allowing the newly elected members from participating until it could be determined whether they had been properly elected. But they could only do so until that determination could be made, and in the process they were required to act in good faith in the best interests of the organization. This prevents Respondents from using the investigation for political ends. In this case, by September 26, before any of the board meetings at issue were noticed, the Baig board knew that there were 105 challenged votes and that no matter what was determined about those votes, the three candidates who had been declared the winners in October would still be the highest vote getters. See Findings of Fact ¶15 above. With this information, the reason to bar the newly elected members ended. It could not longer be said that it was in the best interests of the organization to prevent their participation on the board. And subsequent conduct designed to change the makeup of the board was not done “in good faith.” At that point, the appropriate course was to schedule a meeting of nine members of the board, which is what occurred on the evening of October 6 when the October 10 meeting was noticed. And if the Baig board had appeared at that meeting, the nine members of the board could have sat down together consistently with the vote of the members. While the evidence suggests that there would have been disagreements, those disagreements would have been decided without the necessity of this arbitration. 2. The Declaration by the Baig Board that the Positions of Messrs. Mohiuddin and Sharif were Vacant Was Invalid a. The Baig Board Removed the Two Absentee Directors on October 16 As the arbitration developed, the timing of the vote to remove Messrs. Mohiuddin and Sharif became one of the major points of contention. The significance of this point is that the two were given 31 One of the ironies of this dispute is that both sets of directors were relying on the advice of counsel in their initial decisions to have different board meetings, so all were acting "in good faith". ISEB Mngmt Decision p. 21 notice of every earlier meeting of the Baig board but not of the October 16 meeting, so that if they were still members of the board at that time, the notice for that meeting was defective and the meeting and its consequences were invalid. As discussed above, the arbitrator has made a factual finding that the Baig’s board action to remove Messrs. Mohiuddin and Sharif took place on October 16. Ultimately, the most telling evidence in this regard are the Respondents’ own words, including verified court pleadings, the language used in three sets of minutes, which are the official records of the business conducted by the board of directors, and their Opening Brief for the arbitration hearing.32 Every document Respondents prepared before the March 2015 hearing dates for the arbitration stated the two were removed on October 16. The three sets of minutes are from October 6, October 16, and March 2. The initial board action on October 6 was a decision by the Baig board that the four members present would vote to remove the absent directors, but they would submit the minutes to the full nine-member board for ratification. In this context, “ratify” can be understood to mean give formal consent to, making it official and valid. Dr. Baig testified that he prepared the minutes for the October 6 meeting, and he could provide no other meaning for these words. In the October 16 minutes, without referring to the October 6 meeting, Wajahat Abdulla, the secretary, recounts the Baig board’s history of the absence of Messrs. Mohiuddin and Sharif and writes that the board “invoke” the Bylaws to declare the two positions vacant.33 While the minutes also use the past tense, “declared,” the interpretation that the removal was formally accomplished at the October 16 meeting is more consistent with the text, given the context and in particular the inclusion of the history. Providing the history suggests that the board wanted to explain its rationale at the time it made the decision, and that the decision had not yet been finalized. If the decision was already final, there would be no reason to say more than that the two had been removed at the prior meeting. The minutes for March 2, 2014, likewise “ratify” the declaration on October 16 that the two positions were vacant. Moreover, in March 2014, the chairman of the October 6 meeting, Mr. Qureshi, filed his Verified Cross-Complaint in which he states under oath that the two were removed on October 16; it is reasonable to infer this declaration contributed to the superior court making a factual finding that the removal took place on that date. And counsel’s opening brief in this proceeding likewise confirmed the October 16 date. (Resp. Opening Brief, ¶16, at 7-8) 32 According to the arbitrator’s notes, counsel for Respondents also stated in his opening statement at the hearing that the positions were declared vacant on October 16. Respondents did not dispute this statement in the Interim Decision although they and Petitioners both recorded the hearing. To be fair, in the one instance the arbitrator asked the parties to provide a transcript (Waqar Khan's testimony), neither side was able to do so. 33 While the October 13 notice from Dr. Baig and the October 16 minutes list two other reasons as well, neither of these is listed in the ISEB Bylaws as grounds for declaring a director’s position vacant, and the only ground asserted in the Verified Cross-Complaint is that they were absent. ISEB Mngmt Decision p. 22 At the arbitration hearing in December, Dr. Baig initially testified consistently with this record. However, on examination, he could not explain why the email notifying Messrs. Mohiuddin and Sharif of the board’s action was sent on October 13, why it referred to a board action on October 13, why the notice he sent on October 8 was addressed to all nine directors and did not mention that Messrs. Mohiuddin and Sharif’s positions had been declared vacant, or what board action to be ratified was referred to in the October 6 minutes. It was only after this examination and the gap in the proceedings until March that he testified that the board action referred to in the October 13 email was the October 6 meeting. He still could not explain the other aspects of this, including why he did not send such an email before the October 10 scheduled meeting, and what changed between his October 8 email to the community and all nine board members announcing “an opportunity to bring the community together” and his October 13 email telling Messrs. Mohiuddin and Sharif that they had been removed. After the problem with the October 16 date became apparent, in March the Baig board members testified that the decision to remove was made on October 6. I do not find this convincing. None of the Baig board who testified could explain why the October 6 minutes refer to “ratification prior to the First Meeting of the New Board, consisting of 9 members.” None could explain why the minutes of the October 16 meeting minutes do not refer to the October 6 meeting as when Messrs. Mohiuddin and Sharif’s positions were declared vacant, but instead state that they “invoke” the Constitution and “declared” the positions vacant. And none tried to explain the March 2 minutes, the Verified Cross-Complaint, the opening brief, or Dr. Baig’s October 8 email and Mr. Farooqui’s October 7 conversation with Mr. Sharif—both of which are difficult to reconcile with the contention that the two were removed on October 6.34 Respondents point to Waqar Khan’s email of October 8 telling Mr. Mohiuddin that he and Mr. Sharif had been “sacked” as evidence that it had already taken place. And this is persuasive along with other testimony that there was a discussion about removing them on October 6. But Waqar Khan was not then a board member and had no authority to provide that notice, and none of the Baig board members affirmed his statement at the time, despite being specifically asked about it. Mr. Khan’s email does not persuade me that the Baig board intended at that time that they had made a final decision to remove the two absentees at the October 6 meeting. The explanation which reconciles these many inconsistencies is that on October 6 the Baig board considered removing Messrs. Mohiuddin and Sharif but believed it was necessary and/or appropriate to have that decision ratified by the full board. Thus, the notices sent by Mohammad Khan and Dr. Baig on October 6 and 8 both were sent to all nine board members and did not mention any vote to remove Messrs. Mohiuddin and Sharif, nor did Mr. Farooqui in his telephone conversation with Mr. Sharif. On October 7, the agenda sent by Mr. Mohiuddin made it clear that the Ahmed board planned to attend the 34 Respondents also argue that the community urged them to remove the two absent members are October 6. In this connection, the “community” consisted of three of those who complained, possibly their attorney Mr. Farooqui, and eight to ten others, one of whom was Mr. Sarwat who testified that he tried to act as a mediator between the two groups. (See Exs. D32, E30) ISEB Mngmt Decision p. 23 next meeting but that they would assert that their board meetings since September 3 were valid, including the election of officers. On October 10, the Ahmed board appeared at the time and place designated by the Baig board, and the minutes appear to confirm their intention to maintain that their prior actions were valid. By October 13, some or all of the Baig board apparently decided that it would be better if Messrs. Mohiuddin and Sharif were removed before the next meeting, which would have the effect of leaving the four votes of the Baig board as a majority compared to the three votes of the newly elected directors. It was only then that a member of the Baig board told the two absentee directors about their removal, and only then that they were not invited to the next board meeting. Even so, the October 16 Minutes do not state that they had already been removed or refer to the October 6 meeting; these minutes are the first that state that the board had removed them. For the foregoing reasons, I find that the Baig board officially removed Messrs. Mohiuddin and Sharif on October 16. As a result, when Dr. Baig noticed the October 16 board meeting specifically excluding Messrs. Mohiuddin and Sharif, he failed to give proper notice and any decisions made at that board meeting were invalid. b. The Power to Remove Directors Who Do Not Appear at Meetings Under the Bylaws, missing three consecutive meetings is grounds permitting the board to remove a director. (Art. IV §4.b.3, Ex. A3p.23). The purpose of this rule is to allow the board to replace members of the board who are refusing or unable to participate in the board’s activities. In this case, the issue was not that Messrs. Mohiuddin and Sharif were refusing to act as directors by participating in board meetings, it is that they had chosen a different group of directors to side with. There is no dispute that Messrs. Mohiuddin and Sharif missed three noticed special meetings of the Baig board on September 29, October 2 and October 6, 2013. Petitioners argue that these meetings were not properly noticed because no notice was given to the three newly elected members.35 As discussed above, I have determined that the board could vote at the August 30 meeting to hold off allowing the newly elected members from participating, and therefore the notices to these three meetings were not deficient. There is another issue, however. The Ahmed board conducted a number of meetings beginning on September 3, the first of which was noticed properly by Messrs. Mohiuddin and Sharif. There were 35 Petitioners also argue that the meetings were not properly noticed because Dr. Baig was not the president, and only the president has the power under the Bylaws to notice the meetings as a lone director. (Art. V §3, Ex. A3p.23) However, the same provision also provides that the vice-president (Dr. Baig’s position in the 2012-2013 board) has the same powers as the president if the latter is absent or unable to act, which is consistent with a more general provision empowering the vice-president in the same circumstances. (Art. VI §6, Ex. A3p.27) Dr. Baig had the power to notice these meetings. ISEB Mngmt Decision p. 24 meetings on September 3, September 8, September 12, and October 2, which the four members of the Baig board did not attend. Under the same provision of the Bylaws, the Ahmed board could have voted off those four members.36 Even without Mr. Ahmed’s vote, there were four members of the Ahmed board just as there were four members of the Baig board when they voted off the two absentees.37 Thus, the rule to remove directors for not attending meetings when there are two boards holding separate meetings does not appear well-suited to decide the dispute, since both boards could vote off the members of the other. The second significance to these meetings is that Messrs. Mohiuddin and Sharif attended a board meeting on October 2 at 9:08 p.m. (Ex. D18). They were not refusing to act as directors; they were acting as directors by appearing at board meetings called by different directors. Respondents take the position that these were rogue meetings and therefore of no consequence. It is true that the Ahmed board meetings were retroactively held to be conducted without a quorum, and therefore none of the votes taken were binding. That does not mean that the meetings were of no significance. That board too was acting on the advice of counsel and, under Section 9241, "in good faith." Looking at all the board meetings which took place during the relevant period, there was a Baig board meeting on September 29 (Ex. D29), a Baig board meeting on October 2 at 7:40 p.m. (Ex. D30), an Ahmed board meeting on October 2 at 9:06 p.m. (Ex. D18), a Baig board meeting on October 6 (Ex. D32), an Ahmed board meeting on October 10 at the time and place noticed by both boards and canceled by Mohammad Khan (who was not a director) (Ex. A54), and a Baig board meeting on October 16. (Ex. A15). Messrs. Mohiuddin and Sharif attended the two Ahmed board meetings, and therefore had not missed three consecutive board meetings by either October 6 or October 16. It is also troubling that these meetings seem to be designed to create three absences in as short a time as possible pending an investigation that could not change the result of the disputed election. The October 2 meeting appears to have no other purpose, since the agenda was to discuss an investigation which had been directed at the prior meeting but was not completed until just before the next meeting. None of the Baig board members explained the purpose of this meeting other than to allow the two to be removed. The communications from the Baig board and their counsel to Messrs. Mohiuddin and Sharif certainly put the two on notice of the board’s intent. They could have attended, just as the Baig board members could have attended meetings of the Ahmed board. But given the other circumstances here, in particular that by September 26 the Baig board knew the investigation would not change the result and that Messrs. Mohiuddin and Sharif appeared at the October 10 board meeting noticed by the Baig board, the 36 When asked why they did not, Mr. Ahmed testified that he believed they were advised by their counsel that the provision in the Bylaws should only be applied to regular monthly board meetings, not closely-grouped special meetings. This is not an argument asserted by Petitioners at the arbitration and the language of the Bylaws does not support such a limitation, at least in the absence of circumstances where a board member was unavailable during the relevant period. 37 This is true whether the two were removed on October 6 or October 16, because at the October 16 meeting there were only four board members present and qualified to vote at the time of the discussion about their removal. Two additional board members were appointed to replace them afterwards. (Ex. A15) ISEB Mngmt Decision p. 25 vote to remove appears to be a political manoeuver rather than a vote to protect the organization, and was not in good faith. I conclude for all these reasons that the Baig board did not comply with the Bylaws when it removed Messrs. Mohiuddin and Sharif, regardless of whether that occurred on October 6 or 16. 3. The Actions of the Waqar Khan Board Were Invalid, Including Requiring a New Application Form and Removing Alam Mustafa and Bilal Murtaza as Directors Since Messrs. Mohiuddin and Sharif were not properly removed and were not removed at all by board action before October 16, the notice for the October 16 board meeting was invalid (it was not provided to then board members Messrs. Mohiuddin and Sharif) and there was no quorum at the October 16 board meeting (the four members of the Baig board were the only valid board members present; the two additional board members added, Messrs. Waqar Khan and Abdulla, were improperly appointed to replace Messrs. Mohiuddin and Sharif). Where directors are not properly elected or appointed, all of their acts are void ab initio, as was the case with Mushtaq Ahmed. See Guardian Angel Polish National Catholic Church of Los Angeles, Inc. v. Grotnik, 118 Cal. App. 4th 919, 927 (2004)(all acts of director elected in an invalid election were unauthorized and consequently a nullity). As a result, none of the board actions at that board meeting (including the election of officers), or at any subsequent board meeting, were validly accomplished after proper notice and with a quorum present. Messrs. Mohiuddin and Sharif remained as board members and were never given notice of a later meeting, which might have permitted their removal. Messrs. Alam Mustafa and Bilal Murtaza were not properly removed as directors since there were no properly noticed meetings at which they failed to participate. Enos Mea was validly elected as a replacement director for Mushtaq Ahmed. Thus, by the time of Mr. Mea’s election, the elected and still board members were Khalid Baig, Jamal Qureshi, Raffath Shareef, Rehana Markar, Alam Mustafa, Bilal Murtaza, Qadir Mohiuddin, Fazale Sharif and Enos Mea. According to the records provided the arbitrator, the terms of Alam Mustafa, Bilal Murtaza and Enos Mea run until June 30, 2016, those of Jamal Qureshi, Rehana Markar and Qadir Mohiuddin expired on June 30, 2015, and those of Khalid Baig, Raffath Shareef and Fazale Sharif expired on June 30, 2014. Since the Waqar Khan board’s acts were void, the requirement that a new application be filled out and the disqualification of the entire membership that did not fill out the new forms were invalid. The replacement elections for Mr. Mea and Ms. Markar, who were removed because they failed to fill out the new application, were invalid. Respondents argue that any deficiencies in the earlier acts were cleansed by the ratification of all such acts at the March 2, 2014 board meeting and the 2014 general membership meeting. First, the board action on March 2 was void as lacking proper notice and a quorum. ISEB Mngmt Decision p. 26 The membership meeting and vote poses a more difficult question. Neither counsel has cited case law specifically addressing this point. The evidence establishes that there were over 400 members qualified to vote in the April 27, 2014 election conducted by the Waqar Khan board using the 2013 membership list. According to Waqar Khan, 472 then current members were given the new application form to return in 2013. The lists prepared by counsel and the parties and presented during and after the July 8 hearing show differing numbers of persons eligible to vote based on having a membership form on file and appearing on the CPA’s list as having made the necessary donation. To briefly summarize: Petitioners’ evidence at July 8 hearing - 481 not including those who had only the new form on file; Petitioners’ list presented after the July 8 hearing - 517 with the old form on file including 35 life members and 29 with the new form on file; Respondents’ counsel’s list presented after the July 8 hearing - 244 with either form on file.38 According to the Respondents, at the general body meeting in June, there were 76 eligible members of which 38 appeared and voted.39 The effect of the requirement of a new application is manifest. Using the 38 Respondents’ post-hearing brief provides a comparison of the lists. Respondents acknowledge omitting the life members and that they should be included. The other variations noted for the 2014 list are: eight names on Respondents’ list which are not on Petitioners’ list; and on Petitioners’ list, 26 names that have no address on file, 2 that lack names of individual voters, and the remainder not appearing on the 2013 voter list (identified as Petitioners’ original starting point) and for whom Respondents’ counsel has no evidence of an application on file. It is not clear how many of the latter are in Exhibit F-10, the open applications given by Hamid Ali to Vazir Mansuri when the latter took over as membership chair. Of the 10 applications in the exhibit I compared (the first ten), seven were listed by Respondents as lacking an application. A similar if less detailed comparison is provided for the 2015 lists. 39 After reviewing the donation records subsequent to the July 8 hearing, Petitioners identified 49 names of the 76 on the list used by the Waqar Khan board for the 2014 election who had not paid, leaving only 27 who had paid the required amount prior to December 31, 2013, as required by the Bylaws. Respondents dispute that assertion. Based on the arbitrator’s review of the various lists, it does appear that of the 49 names on Petitioners’ list, 45 were not listed on the CPA’s list of 2013 donors, with three questionable entries (name on voter list: Abdul Qadir/Sofia Khan, vs. name on donor list: Abdul Qadir, but shows paid only $25, enough for one but not two members as stated on voter list; Ahmad Wasim vs. Wasim Ahmed/Arefa Shaikh, paid for two, listed as one; and Khan Usma vs. Usman Khan). Of those who did not pay dues, and some 17 or 18 appeared at the annual meeting (one attendee’s name is close to that of the person on the list who did not pay). There was also one person who claimed to be a member and whose name is not on the list of eligible voters or on the voter list. Two of those who attended were Abdul Qadir and Sofia Khan, who as a couple had not paid enough for two members. Thus, of the 76 listed as eligible, perhaps only 30 were valid members (counting Abdul Qadir and Sofia Khan as one valid member and the other two questionable entries as valid members), of whom 20 attended, with two questionable names. I note in this connection that a comparison of the list of 35 life members included in Petitioners’ post-hearing submissions, which Respondents did review and did not dispute in their post-hearing briefs ISEB Mngmt Decision p. 27 highest of the numbers, 482 eligible voters were excluded (6.3 times the number considered eligible at the time); using the lowest of those numbers, at least 168 eligible voters were excluded (2.2 times the number considered eligible at the time). 40 The evidence also establishes that candidates who should have been permitted to run were barred from being nominated because they failed to fill out the new application. Since significant numbers of voters were improperly denied the opportunity to vote and properly nominated candidates were barred from running, I find that the votes at the 2014 general body meeting and at the director elections are invalid. 4. The Amendments to the Bylaws in the 2013 Election Passed, and Alam Mustafa and Bilal Murtaza Were Elected The Petitioners seek a ruling that the amendments to the Bylaws declared passed by the election committee were indeed passed. The Alameda County superior court so held when it ordered the dispute to arbitration, and the Respondents do not disagree. I so find. (acknowledging they had been inadvertently omitted from Respondents’ post-hearing lists), it appears that the 76 treated as eligible at the time does not include the life members. If the life members should be counted as members, there would be 65 eligible voters (30 + 35), of whom 20 attended, less than the 1/3 required for a quorum. The arbitrator is mindful of the testimony of Mohammed Khan concerning the post-election audit in October 2013 of the 2013 election list in which 104 names which appeared not to match an application or a donation were confirmed to be valid because of variations in how members list their names. While the Waqar Khan board testified that one of its goals was to clarify the list of members to avoid such issues, it is not appropriate for the arbitrator to draw significant conclusions from this evidence, in particular because it has not been the subject of testimony under oath subject to cross-examination. Given there are grounds for concluding that the votes taken at the 2014 annual meeting are invalid because eligible voters were excluded, there is no pressing reason to examine further whether there were irregularities in how the voting list actually used at that meeting was assembled and the quorum was calculated that would also justify invalidating that meeting. Similarly, the arbitrator has used Respondents’ numbers in the text for purposes of calculating the effect of excluding voters because they did not file a new application form. Obviously the ratios would be more extreme if the valid membership at the time of the mid-year 2014 elections was only 30. 40 At the June 18, 2015, oral argument, counsel for Respondents contended that there should be a further hearing on whether the requirement to file a new application excluded a sufficient number of eligible voters from the general body meeting and the 2014 director elections to conclude that there could have been a different result if the excluded voters were permitted to vote. This contention was withdrawn prior to the July 8, 2015, hearing, and the evidence establishes that far more voters were excluded than were permitted to vote, so different election results were certainly possible. ISEB Mngmt Decision p. 28 While there is no formal request by Petitioners for a finding on whether Alam Mustafa and Bilal Murtaza were elected, presumably because Respondents acknowledged that they were, because Respondents have raised the issue of their removal it is appropriate to confirm that Alam Mustafa and Bilal Murtaza were validly elected in the 2013 election. 5. The Requirement for Existing Members to Fill Out a New Application, Voiding Memberships and Applying Only Payments for Membership Fees Were Contrary to the Bylaws As discussed in section 3 above, I find that the board’s actions in imposing the new application form are void and therefore that form has no validity. But since the issue has been raised here in a specific request for a finding and may arise again, I make the following comments and findings. As a general matter, the board has the power to change the ISEB application form, but the revised form imposed by the Waqar Khan board (Ex. A3p.63) includes a problematic provision and was implemented improperly. The improper provision is that it applies only “membership dues” as payments considered applicable for membership. The Bylaws state that members must “pay any minimum amount due for construction, operation, and membership fees as set by the Board of Directors ...” to be a member and be eligible to vote in the subsequent year’s elections. (Art. II, §1.d, Ex. A3p.18) The testimony was uncontradicted that payments to the construction and operations accounts had always been considered valid for purposes of determining whether membership payments had been made. This act in contravention of specific provisions of the Bylaws invalidates the application. The second troubling aspect to the application form is that it states that membership will be granted “only after final approval from the Board is granted.” The Waqar Khan board required all existing members to fill out the new form and then reserved for itself the right to review and approve those “new” applications. The Bylaws do not specify a method by which new members’ qualifications can be reviewed, and I find that the board has the power to impose a process by which new members’ applications are considered and approved.41 The evidence discloses only one case in which the board disapproved an application, that of Mogeeb Weiss, and the reason given for the disapproval was that one of the removed board members signed the “approved” line. Accordingly, I do not disapprove the form on this ground. But the board’s requirement that all existing members file the new form had the effect of removing and disenfranchising a substantial portion of the membership, and thereby violated the Bylaws. In November 2013, Waqar Khan went so far as to declare all current membership lists null and void. (Ex. E24) In 2014, several hundred or more members who had an application on file and had made the necessary donations in 2013 were barred from voting because they had not filled out a new application. 41 The prior application form has an "Approved By" line referencing the President, Vice President or Membership chair. There was evidence that not all application forms on file at ISEB have a signature in this line. ISEB Mngmt Decision p. 29 In effect, the board voided the memberships of any member who did not file a new application form, even if they had a form on file and had made appropriate donations to ISEB for many years. This is contrary to the Bylaws, which provide a means by which individual members may be removed by the board or the membership as a whole “for failure of a member to continue to meet the qualifications stated in Section 1, above” (Art. II, §2, Ex. A3p.19), but does not provide for the wholesale removal of all members pending submission of a new application. A purported termination of membership must be done in accordance with the Bylaws, and a purported termination contrary to the Bylaws is invalid. Westbrook v. Social Center Hall Association of Stockton, 148 Cal. App. 2d 815, 816 (1957). I find that voiding the memberships of all current members who have filed the preexisting membership form as then required is invalid. This does not prevent the board from changing the application form for new members, as long as the new form comports with the Bylaws. 6. Other New Voting Rules Are Permissible But Are Not in Place The Waqar Khan board imposed requirements for in-person voting with photo identification. This was already passed on and approved by the superior court. Whether or not that ruling on a TRO is binding in this proceeding, the arbitrator finds no conflict with the Bylaws in these voting rules and does not sustain Petitioners’ complaint on this issue. As discussed in Section 3 above, the arbitrator finds that there was no valid board resolution to apply the rules, so they are not currently in place. 7. The Board’s Removal of Existing Directors Rehana Markar and Enus Mea Corporations Code §9221(b) provides that the board may by majority vote “declare vacant the office of any director who fails or ceases to meeting any required qualification that was in effect at the beginning of that director’s current term of office.” The Bylaws of the organization provide that a “director that becomes unqualified to be a member, shall lose his position on the Board of Directors.” (Art.IV, §3.b, Ex. A3p.22) Accordingly, if there were a valid reason why Rehana Markar and Enus Mea were no longer members, it would be permissible to have a vote of the board of directors to remove them. In this case, there was no recorded vote and the only reason for their removal provided was their failure to fill out a new application form, which I find is not a valid reason. 8. Remedy The parties have made various contentions about how to fashion a remedy to respond to these findings. At one time, Petitioners sought to have all board members who were improperly removed by the Waqar Khan board returned to office until a new election is held to replace them. I am not persuaded. I find that the provisions of the Bylaws should govern this issue, and those whose terms expired in June 2014 ISEB Mngmt Decision p. 30 are no longer board members. 42 Accordingly, at the time of the Interim Decision on May 11, 2015, there were six current board members: Alam Mustafa, Bilal Murtaza, Enos Mea, Jamal Qureshi, Rehana Markar and Qadir Mohiuddin, and the terms of the last three expired on June 30, 2015. It will be necessary to hold an election for the three seats from the election of 2014 and to replace the three directors whose terms expired in June 2015. Given the subsequent proceedings, these elections have been delayed. There is a question of who are members. This issue was left open for further briefing and argument in the May 11, 2015 Interim Decision, and was addressed in the June 18, 2015 oral argument and the July 8, 2015 hearing. Respondents withdrew their assertion that insufficient members were excluded from voting in 2014 to justify the arbitrator’s rejection of the June 2014 ratification (without waiving their assertion that the arbitrator lacked subject matter jurisdiction to reach that issue). Petitioners withdrew their assertion that the arbitrator should order that all members permitted to vote in 2013 should be allowed to vote in the contemplated elections, 43 and instead argued that those members who should have been allowed to vote in 2014 based on the arbitrator's decision be allowed to vote for the replacement election for 2014 and those who should be allowed to vote in 2015 based on the arbitrator's decision be permitted to vote in the election in 2015, consistent with what occurred in the 2014 election to replace Mushtaq Ahmed. Without waiving any of their arguments, Respondents' counsel agreed to meet and confer with Petitioners' counsel to attempt to agree on the voter lists. The arbitrator directed the parties to try to agree both on voting lists and the administration of the election. Apparently, there were no significant efforts to meet and confer on these issues. The parties submitted separate voting lists. Respondents provided a bid from a third-party vendor to conduct the 42 Petitioners cite Housing Authority of the City of Needles v. City Council of the City of Needles, 208 Cal. App. 2d 599 (1962), for the proposition that the improperly removed board members should return until new directors are properly elected and qualified. Both under Corp. Code §9220 and the specific facts of that case, the result was reasonable; under the Government Code the officials continued in office even after their terms expired until a successor is qualified. But the ISEB Bylaws and practice are different. A board members' term expires on June 30 of the third year in office, even where (as in 2013) their replacements had not yet been elected. The terms of Khalid Baig, Raffath Shareef, Fazale Sharif, Jamal Qureshi, Rehana Markar and Qadir Mohiuddin have all expired and they are no longer directors, notwithstanding the impropriety of the election or appointment of their replacements. 43 Petitioners contended that members were barred from paying dues by the Waqar Khan board and therefore should be permitted to vote even if their dues are unpaid. Petitioners wrote: "Given that WAQAR KHAN himself admitted that he and his group prevented the expelled members to keep their membership fees current, that fact should not be held against the returning members at the time of reinstatement." Petitioners' Closing Brief, p.14. I directed Petitioners' counsel to prepare a transcript from the recording kept by Petitioners of that portion of Mr. Khan's testimony to provide for verification to Respondents' counsel and to me. Counsel on both sides were unable to find a recording for that portion of the testimony. At the July 8 hearing, I permitted Petitioners to present any evidence they wished to support their claim that would-be members were barred from making donations to ISEB. No persuasive evidence was presented on this point. ISEB Mngmt Decision p. 31 election. Petitioners argued that the use of a third-party vendor is expensive and unnecessary and proposed instead that the membership committee and election committee be tasked as they have done in the past with developing lists of eligible voters, and any votes cast by mail be sent to the CPA to avoid the appearance of the possibility of tampering. I conclude that on the facts of this case, it is appropriate that the replacement election for the 2014 election be conducted using the eligible voters for 2014, and the 2015 election be conducted using the eligible voters for 2015. This is an admittedly awkward solution, but it most closely puts the parties back to where they would have been in the board actions I have concluded are invalid, and is most consistent with the Bylaws. It is also consistent with how the ISEB conducted the replacement election for Mushtaq Ahmed, held in 2014 by using the list of voters eligible in 2013. Petitioners have argued that only voters using the old membership application form should be permitted to vote, saying that since the arbitrator has found the new form to be invalid, that form should not be used for any purpose. After reviewing records after the July 8 hearing, Petitioners also argued that, given the substantial number of donors who had not provided forms, all donors should be permitted to vote whether or not they had application forms on file. Their post-hearing brief asserts that the Waqar Khan board failed to follow past precedent by approaching all donors to solicit their filling out an application form to become members. No evidence supports the assertion, and even if true it would not support altering the Bylaws’ requirements. The remedy ordered should be consistent with the Bylaws. Under the Bylaws, to be eligible, members must have made the appropriate contributions and have filed an application form. Those who have filed a new application form have complied with that requirement. The deficiency in the new form is to exclude payments made to the operations or construction accounts, contrary to the Bylaws and ISEB practice. The new form required payments for membership dues, which are a valid basis for membership under the Bylaws. I conclude that those who sought membership should not be barred because they filled out the application as it was presented to them by the ISEB management. I find that anyone who has filed either the old application form or the new application form, and has paid the designated amount either into the operations account or the construction account, or as membership dues, by December 31, 2013, is eligible to vote in the 2014 election, and anyone who has filled out an application form and paid the designated amount for the designated purposes by December 31, 2014, is eligible to vote in the 2015 election. Since the parties have not agreed on a list of members nor presented a disputed list to me with sufficient explanation that would allow me to rule on the issue, I will not decide on who meets the qualifications. ISEB has an established practice for determining persons eligible to vote, and ISEB can conduct these elections. Respondents have not established that the system is corrupt or untrustworthy, nor that there were substantial numbers of “ghost voters” as they have argued repeatedly. Indeed, not a single “ghost voter” was identified. The arbitrator has not heard evidence that establishes the need for an outside person to direct how the voting lists are put together, beyond establishing the broad guidelines set forth herein, or how the election should be conducted. While the use of the CPA would help avoid some controversy, and the use of a third-party vendor may be a valid choice, the decisions for how the election ISEB Mngmt Decision p. 32 should be run are for the board of directors, within the rules established by the Bylaws and with the appropriate management by the election committee. I appreciate the concern of Respondents that the remaining members of the board, Alam Mustafa, Bilal Murtaza and Enos Mea, are aligned against them. (Respondents have described Mr. Mea as part of the Mushtaq Ahmed faction.) But these gentlemen are the only elected directors and they must be relied on to govern the organization, subject to the Bylaws. 9. The Arbitrator Has Jurisdiction to Rule on Events that Occurred after the Petition for Arbitration was Granted Where Integral and Necessary to Make Effective the Rulings on the Issues Submitted Respondents have argued that the subject matter jurisdiction of this arbitrator is circumscribed by the court’s ruling directing the issues in the First Amended Petition for Arbitration to be arbitrated pursuant to the Code of Civil Procedure. Thus, they argue that issues not raised in that petition are beyond the authority of the arbitrator to rule upon. After reviewing the Interim Decision in which the essential elements of this ruling were stated, they more specifically argued that the arbitrator cannot enter a ruling on the effect of the general membership meeting vote in June, 2014. That vote obviously occurred after the matter was ordered to arbitration and thus could not have been included explicitly in the Petitioners’ requests for relief. In this case, the grounds upon which I base my ruling that the votes at the general body meeting were not valid arise from the issues in the Petition. Indeed, if an arbitrator in this case could not rule on the votes at that meeting, the entire arbitration would have been mooted by the Respondents conduct subsequent to the order to arbitrate. In effect, all of the board actions that I have held to be improper and invalid—the removal of directors, the requirement of an application that contradicts the Bylaws, the disenfranchisement of a large portion of the electorate—were ratified by at most 38 members (including the Respondents). I conclude that I have the jurisdiction to order the relief required in this case to restore the parties, as best as possible, to the situation they should have been in. Time has passed and certain events cannot be undone. There may be members who do not return or who have not paid money towards the mosque since December, 2013, who will have been disenfranchised. There are those who were elected in 2014 who for the most part have done nothing wrongful and yet this order removes them from office. These are all unfortunate, but necessary to accomplish what must be done. 10. Continuing Jurisdiction The arbitrator has considered whether to maintain jurisdiction over this matter during the election process to resolve disputes quickly. Given that Respondents have indicated a desire to challenge at least some portions of this ruling in court, I have determined that issuing anything other than a final award would create potential issues in having final court resolution over the core issues for which I was appointed. Already, this arbitration has imposed substantial expense on this non-profit religious community and I do ISEB Mngmt Decision p. 33 not wish to impose any further expense which may be unnecessary. Moreover, should another issue arise for which it is appropriate to appoint an arbitrator, the court will have the flexibility to choose me or another arbitrator. Accordingly, I have determined to issue a final award. Conclusions of Law 1. Those portions of the amendments to the Bylaws which were declared passed by the Election Committee on July 30, 2013, are now part of the Bylaws. 2. The seats of Messrs. Mohiuddin and Sharif were not validly declared vacant and they were not properly removed as directors. 3. Messrs. Waqar Khan and Abdulla were not validly appointed to the board to replace Messrs. Mohiuddin and Sharif. 4. Board meetings after August 30, 2013, lacked a quorum. 5. Board meetings from October 16, 2013, forward were not properly noticed, and none of the acts of that board are valid. 6. The seats of Alam Mustafa and Bilal Murtaza were not validly declared vacant and they were not properly removed as directors. 7. Enos Mea and Rehana Markar were not properly removed as directors. 8. Votes at the general membership meeting in June 2014 to ratify prior conduct and elect new directors, and on other matters (including suspending the amendments to the Bylaws approved at the August 2013 election) were not valid. 9. As of the July 1, 2015, the only directors who had been validly elected and whose terms have not expired are Alam Mustafa, Bilal Murtaza and Enos Mea. AWARD 1. The current members of the board are Alam Mustafa, Bilal Murtaza, Enos Mea. 2. An election shall be held as soon as practicable to fill the three director positions filled at the election in June 2014 as well as the three director positions which expired in June 2015. 3. The members eligible to vote in the upcoming election are, for the election of directors whose terms would begin July 1, 2014, those who have paid the designated amounts for construction, for ISEB Mngmt Decision p. 34 operations or as membership dues during 2013 and who have on file either the membership form in the place before December 2013 or the form in use thereafter, and for the election of directors whose terms would begin July 1, 2015, those who have paid the designated amounts for construction, for operations or as membership dues during 2014 and who have on file either the membership form in the place before December 2013 or the form in use thereafter. 4. The election will be conducted by the election committee and the board of directors in a manner consistent with the Bylaws. 5. The election of officers should follow the upcoming elections. IT IS SO ORDERED Dated: August 4, 2015 ISEB Mngmt Decision p. 35 _________________________________ David J. Meadows Sole Neutral Arbitrator