buholtz complaint

7/29/2019 Buholtz complaint

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STATE OF NEW YORKSUPREME COURT COUNTY OF MONROEIn re Eileen E. Buholtz on behalf of RochesterPhilharmonic Orchestra, Inc. and other similarly situated

members of Rochester Philharmonic Orchestra, Inc.,Plaintiff,v.

The Board of Directors of Rochester PhilharmonicOrchestra, Inc., Defendant.

VERIFIED

COMPLAINT

INDEX NO.: 13/648Assigned Judge:Hon. Matthew A. Rosenbaum, JSC

Plaintiff states upon knowledge as to her own actions and upon information and belief as to

all other matters stated below, as follows:

1. Plaintiff is a resident of the County of Monroe and was a member of RochesterPhilharmonic Orchestra, Inc. (RPO, Inc.) in an amount of at least $75 paid between Jan. 1,

2012 and December 21, 2012.

2. RPO, Inc.s principal place of business is 108 East Avenue in the City of Rochesterand County of Monroe.

3. RPO, Inc. is a not-for-profit membership corporation whose principal place ofbusiness is 108 East Avenue, Rochester NY under the laws of New York, a charitable

organization under Internal Revenue Code 501(3)(c), and is subject to the jurisdiction of the

New York Charities Bureau.

4. Defendant is the Board of Directors of RPO, Inc. as of 5 pm on December 21, 2012and as defined by bylaws Art. III, 2.

5. For the courts reference, Charles Owens is CEO and President of RPO, Inc.Elizabeth Rice is chair of defendant. Jules Smith is secretary of defendant.

EXHIBITS

6. The following are attached as exhibits:


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A. The by-laws of RPO, Inc.B. Notice of Annual Meeting of RPO, Inc. for January 23, 2013.C. Ballot accompanying annual notice of meeting.D. December 19, 2012, 10:25 am, memo of phone call from Plaintiff to Ellen Beck at

RPO, Inc.

E. December 19, 2012, 3:36 pm, memo of phone call from Ellen Beck (RPO, Inc.) toPlaintiff

F. January 11, 2012 letter from Thomas Fink to C. Owens and E. Rice.G. December 20, 2012, 1:48 pm email from Thomas Fink to plaintiff.H. January 7, 2013 letter from plaintiff to RPO, Inc.I. January 11, 2013 letter by email from Thomas Fink to C. Owens, E. Rice, and J.

Smith.

J. Email string in reverse chronological order, re documents to be produce by RPO,Inc.:

January 15, 2013, 6:53 pm plaintiff to RiceJanuary 15, 2013, 4:11 pm, Rice to plaintiffJanuary 15, 2013, 3:34 pm, Rice to plaintiffJanuary 15, 2013, 2:11 pm, plaintiff to RiceJanuary 15, 2013, 12:18 pm, Rice to Mr. Fink.

K. Post-it note attached to minutes of meeting, which were supplied on January 17,2013, for cost of copying 11 pages at ten cents per page. [Meeting minutes totaling

eleven pages are being provided under separate cover: Board of Directors meeting

October 31, 2012 (four pages); Board of Directors meeting October 3, 2012 (three

pages); Executive Committee Meeting Oct. 24, 2012 (two pages); and Executive

Committee Meeting September 27, 2012 (two pages).]

L. January 17, 2013 memo from RPO, Inc. s accompanying listing of current membersfrom September 1, 2012 through January 11, 2013. [Membership list is being

provided under separate cover.]

M.Email string in reverse chronological order: January 18, 2013, 10:59 am, email from E. Rice to plaintiff


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January 17, 2013, 6:13 pm, email from plaintiff to E. Rice, J. Smith, C.Owens, with attachments (same as at exh. F above).

N. Roberts Rules of Order Newly Revised 11th Ed. (2011): title page, copyright pagesand list of prior editions.

O. Roberts Rules of Order Revised, 75th ed. (1951): Title page and table of contents (title page through page 4);46 Voting (pp. 188-201);47 Votes that are Null and Void even if Unanimous (pp.201-202);48 Motions requiring more than a Majority Vote (pp.202-206);66 Nominations and Elections (pp.263-264.

RELIEF REQUESTED

7. An order is requested:A. Adjourning and staying the annual meeting of the members of Rochester

Philharmonic Orchestra, Inc. currently scheduled for January 23, 2013 at 5:00 pm

until further order of this court.

B. Staying the expiration of the terms of any members of defendant that would haveexpired upon the election of new directors, until further order of this court and after

such time as new directors are duly elected and qualified.

C. Directing to defendant to establish properly the record date of December 21, 2012 fordetermining the members entitled to vote at defendants annual meeting, in

compliance with defendants by-laws.

D. Directing defendant to supply to plaintiff and any similarly situated member ofdefendant, including their agents or attorneys, the opportunity to inspect the

membership list of defendant for the time period January 1, 2012 through December

21, 2012 and to provide a copy of said membership list all contact information

associated with said members including but not limited to addresses, phone numbers,

fax numbers, and email addresses, the copy of said information to be provided in hard

copy and in electronic comma-separated-variable or similar format, within a specified

reasonable period of time after the date hereof.

E. Directing defendant to set an adjourned date of the annual meeting of members and to


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provide due notification to its members of said adjourned meeting date in compliance

with defendants by-laws and subject to this courts approvals.

F. Permitting the write-in of an alternate slate of directors, as authorized and required byRoberts Rules of Order, on defendants ballot issued herein.

G. Granting such other, further and different relief as to this Court may seem just andproper including costs, disbursements, and attorneys fees as may be incurred.

STATEMENT OF FACTS

The salient facts from these exhibits are as follows:

A. The By-laws of RPO, Inc. contain various provisions cited below.B.

Defendants Notice of Annual Meeting of RPO, Inc. states that the membershipyear is commences January 1, 2012 through the record date of December 21, 2012

at 5 pm: [m]embers are individuals who contributed a minimum of $75 and

corporations which contributed a minimum of $300, during the period from January

1, 2012 through the record date, December 21, 2012.

C. The Ballot presents eight names for directors. Exh. B.D. On December 19, 2012, at 10:25 am, plaintiff called RPO, Inc. and left a message

in the voice mail of Ellen Beck, administrative assistant to CEO/President Owens

asking the record date for membership for the annual meeting.

E. On December 19, 2012 at 3:36pm, Ellen Beck returned Plaintiffs call and advisedthat the board chair says that the board is establishing that date and that Ms. Beck

would call me. Plaintiff gave Ms. Beck plaintiffs cell phone number.

F. On December 20, 2012 at 12:38 pm, Ellen Beckcalled plaintiff on plaintiffs cellphone and advised that record date is December 21, 2012 at 5 pm.

G. On December 19, 2012 Thomas Fink wrote Mr. Owens and Ms. Rice objecting tothe termination of Arild Remmereit, noting that the termination was one month

after the by-law cut-off date for submission of an opposing slate of directors per by-

laws, requesting adjournment of the January 23, 2013 annual meeting, and

requesting that the location for the annual meeting be moved from the small Hatch

Hall to a larger venue. The next day, December 20, 2012, Mr. Fink received a


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phone call from Kyle Polite (RPO, Inc.), who sent Mr. Fink statements from five

musicians who are opposed to Maestro Remmereit. Mr. Fink told Mr. Polite that

Mr. Fink had seen those statements and nevertheless wanted an answer to his letter

of December 19, 2012. Mr. Fink thereafter received a letter from defendants

Secretary Jules Smith declining Mr. Finks requests (see Fink letter at exhibit I).

H. By letter dated January 7, 2013, plaintiff wrote to RPO, Inc. requesting a certifiedlist of the members entitled to vote at the annual meeting and requesting

arrangement with Eastman School of Music for overflow attendees to the annual

meeting. Plaintiff received no response.

I. By letter dated January 11, 2013 from Mr. Fink to C. Owens, E. Rice, and J. Smith,Mr. Fink reiterated his request for an adjournment of the annual meeting, confirmed

that Mr. Smith had declined Mr. Finks request of December 19, 2012 (exh. F), and

formally request the names and addresses of all members under Art. XI, 2(4) of

the by-laws so that the membership could be notified of additional nominees to be

offered at the annual meeting.

J. On January 15, 2013, Ms. Rice emailed Mr. Fink that she had received his January11, 2013 letter on January 14, 2013 and that she would provide a current list of

members by Thursday, January 17, 2013 after 3 pm for a cost of $66. Plaintiff

responded that Mr. Fink was out of town and that plaintiff would pick up the list on

Thursday, January 17. Plaintiff requested a copy of the minutes of any meetings

and any waivers of consents to any meetings of the Board and the Executive

Committee that were held or solicited between Sept. 1, and January 15, 2013. Ms.

Rice responded that the minutes would be ready on January 21, 2013 but then

advised that the copies of the minutes would be available at the same time as the list

of members.

K. On January 17, 2013 at 3:45 pm, plaintiff picked up an envelope with the meetingminutes totaling eleven pages: Board of Directors meeting October 31, 2012 (four

pages); Board of Directors meeting October 3, 2012 (three pages); Executive

Committee Meeting Oct. 24, 2012 (two pages); and Executive Committee Meeting

September 27, 2012 (two pages). Those minutes are being provided under separate


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cover. On top of the minutes was a post-it note attached with the charge 11 copies

@ $0.10 per copy = $1.10. Plaintiff paid the $1.10 charge.

L. During the same visit to RPO, Inc. on January 17, 2013, plaintiff received anenvelope addressed to Mr. Fink that contained a memo from RPO, Inc. with a list of

current members names, for September 1, 2012 through January 15, 2013,

ostensibly in satisfaction of Mr. Finks request. The membership list is being

provided to the court and defendant under separate cover.

M.By email on January 17, 2013 at 6:30 pm, plaintiff emailed Ms. Rice, Mr. Smith,and Mr. Owens objecting to membership list regarding its format (no alphabetized),

content (no addressed) and time frame (Sept. 1, 2012 - Jan 15, 2013, not Jan. 1

Dec. 21, 2012). On January 18, 2013, at 10:59 am, Ms. Rice responded that RPO,

Inc. had provided all that Mr. Fink was entitled to and declined to provide

membership list for anything other than for the current fiscal year, which runs

from Sept. 1, 2012 to Aug. 31, 2013.

N. The by-laws, art. XII, 2 states that all meetings of members shall be conducted inaccordance with Roberts Rules of Order-Revised. The 2011 edition of Roberts

Rules (which is entitled Roberts Rules of Order Newly Revised) lists the various

Roberts Rules of Order. This table demonstrates that the last edition of Roberts

Rules of OrderRevised, is the 75th

Anniv. (6th

) Ed. (1951).

O. The salient provisions of the 1951 Seventy-Fifth Edition of Roberts Rules of OrderRevised are attached as Exhibit O. The most important provision is 66

Nominations and Elections (p. 263), which provides that at elections where ballots

are used, there are no nominations made viva voce at the meeting, and members

may write in the name(s) of any members for the position at issue on the ballots.

RPO, Inc.s bylaws required that directors be chosen by ballot. The by-laws then

attempt to require nominations of any opposing directors by October 31 and

further attempt to cut off motions from the floor. The by-laws do not prohibit the

writing in of names on the ballot, however, and write-ins are expressly provided for

by Roberts Rules of Order Revised.

INVALID RECORD DATE


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8. Defendant failed to establish the record date of December 21, 2012 by a meeting ofthe Board or of the Executive Committee. The record date is therefore invalid and the Annual

Meeting is improperly called. The Annual Meeting should be stayed and the current directors

on defendant should be continued until proper elections for directors are duly held.

9. The minutes of meetings that RPO, Inc. supplied on January 17, 2013 (exh J andminutes that are being supplied to this court under separate cover) show that there was no

meeting of either the Board or the Executive Committee between October 31, 2012 (being the

date of the last meeting provided by RPO, Inc. on January 17, 2013) and December 21, 2012

at 5 pm (being the record date ostensible set by the Board). The annual meeting should

therefore be stayed and, if the meeting is not stayed, any action that may be taken at said

meeting should thereafter be declared null and void ab initio.

10.The by-laws provide as follows:A. Every member of record who has paid the minimum amount for support of RPO,

Inc. in any membership year as determined by defendant is entitled to one vote at

every meeting of the members during that membership year. Exh. A, Art. I, 5(a).

B. The membership year, unless otherwise determined in advance of the start of themembership year by the Board of Directors, shall be the fiscal year of the

Corporation. Exh. A, Art. I, 1.

C. The Board may fix a date as the record date for the purpose of determining themembers entitled to vote at any meeting of members or any adjournment thereof.

Exh. A, Art. I, 5(b).

D. Any corporate action to be taken by the Board of Directors means action at ameeting of the Board. Exh. A, Art. III, 8.


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E. When the Board of Directors is not in session, the Executive Committee shall havethe power and authority of the Board, and particularly shall have charge of the

activities of the Corporation, and [a]ny reference in these By-laws to the Board of

Directors shall include the Executive Committee, unless it is expressly otherwise

provided, or unless the context clearly indicates the contrary. Art. V, 2.

11. Since October 31, 2012 was the last meeting of either the Board or the ExecutiveCommittee, and none of the four sets of minutes references the record date, defendant failed

to set the record date for membership for the annual meeting, making respondents notice of

annual meeting invalid.

12.Plaintiff requests that the annual meeting should therefore be stayed until defendantsets December 21, 2012 by a duly called meeting of defendant or defendants executive

committee, and that the directors that constitute defendant remain as constituted on December

21, 2012 until further order of the court.

LIST OF MEMBERS

13.Plaintiff is entitled to a list of members for the time frame January 1, 2012 through theostensible record date of December 21, 2012 with all contact information for said members,

and to have that information not only in hard-copy format alphabetized by last name but also

in comma-separated-variable or equivalent format. Roberts Rules of Order Revised

authorizes the members of RPO, Inc. to write in other directors on the members ballots.

RPO, Inc.s by-laws do not prohibit written-in names on the ballot. Plaintiff is therefore

entitled to contact all eligible members of RPO, Inc. to advise them of their right to right in

names and of the names of the six people who are willing to serve as directors.

14.Lastly, plaintiff is entitled to such other and further relief as the court may deem just


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and proper.

WHEREFORE, plaintiff seeks the relief requested under the heading Relief Requested

above.

____s/ Eileen E. Buholtz____________

Eileen E. Buholtz


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STATE OF NEW YORK)COUNTY OF MONROe) SS:

Eileen E. Buholtz, being duly sworn, deposes and says:

Deponent is the plaintiff in the within action; deponent has read the foregoingcomplaint and knows the contents thereof; the same is true to deponent's own knowledge,except as to the matters therein stated to be alleged on information and belief, and as tothose matters deponent believes them to be true.

_s/ Eileen E. Buholtz_______________________

Sworn to be fore me this22nd day of January, 2013

s/ Richard E. Butts_______________________Notary Public

Monroe CountyCommn expires 1/7/2016

buholtz complaint

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