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03 Scherer Letter Reply

EDWARD D. JOHNSON

ATTORNEY AT LAW

5040 OCEANVIEW BOULEVARD

LA CANADA, CALIFORNIA 91011

UNITED STATES

TELEPHONE& TELEFAX (818) 957-7923

June 25, 2010

By Mail and E-mail

Chris A. Scherer

11107 Wurzbach Road

Suite 603

San Antonio, TX 78230

 

Re: ARCE

 

Dear Mr. Scherer,

 

I am in receipt of your letter of June 22, 2010 and acknowledge, with thanks, the attached copy of the Bylaws of ARCE as requested.

 

As to the refusal of ARCE to provide the requested list of members, however, I have the following comments;

 

As I am sure you know, ARCE uses that very same membership list to mail out proxy solicitations every year, actively seeking proxies from any and all members who are not planning on attending the annual meeting for purpose of securing their votes for the pre approved candidates selected by ARCE as officers and for the Board. Copies of these proxies are readily obtainable from ARCE. I am in possession of original copies of same sent to me.

 

ARCE’s Privacy Policy, stated on line, is that, “ARCE intends to use member and constituent data only for ARCE outreach, management and development purposes. Such purposes include, but are not limited to, communicating about upcoming events, providing updates on ARCE activities…”

 

This language, coupled with the ongoing solicitation of proxies mentioned above, clearly establishes that ARCE’s present Management employs proxy solicitations as part of its management of ARCE, undertaken to obtain and sequester votes for the purpose of being cast in favor of the slate of candidates pre-selected and advanced for office. Those proxy solicitations and documents accompanying them are used by ARCE to “communicate about upcoming events” and “providing updates on ARCE activities…”, as stated in its Privacy Policy.

 

It is therefore clear that ARCE does not consider proxy solicitations and accompanying documents to be invasive of the privacy rights of its members or an undue imposition upon them.

 

As a concerned, dues paying member of ARCE, I too wish to use that very same member data to communicate about Management and upcoming events to the other members of ARCE, just as does present Management. In fact, I have stated repeatedly in my correspondence about the matter that it is my intention to provide information about present Management’s conduct of ARCE’s affairs over the years in order to make members fully aware of it and to challenge current Management over its conduct of ARCE’s affairs, much of which, I believe, has been unprofessional, wasteful and inefficient, a matter of vital interest to the members.

 

As present ARCE Management uses membership data to communicate its positions to the members and solicit their proxies, it must be concluded that this is neither a violation of members privacy, not is it in any way unduly onerous or burdensome to members to be so advised and solicited. Present ARCE Management may not, therefore, invoke its ostensible Privacy Policy as a shield to prevent a concerned, long time member from having equal access to and use of that very same information in order to insulate itself from disagreement, dissent, or challenge. Present Management may not invoke the rubric of privacy to quash, strangle or quell challenges to its operating and management decisions and policies when Management itself has historically and freely used the very same information and techniques to perpetuate itself in power.

 

Furthermore, Management owes a fiduciary duty to individual, general members, those members who are the ones entitled to vote, to see to it that the membership is fully apprised of all of its actions, decisions and policies so that the members have the benefit of informed consent in deciding whether and to who they shall give their proxies. Without access to full information, including that of members who have worked for ARCE and have direct personal knowledge of its policies and conduct, that informed consent is lacking and members are not provided the opportunity to fairly judge what they should do.

 

If present Management has done nothing that is questionable and is confident it is right, it has nothing to fear and no reason to object to such limited and proper use of the very same material it has historically used and continues to use, itself. If it was willing to review, constructively address and solve the problems and issues which I have raised in prior correspondence, such as professionalization of its staff and areas of management, it could have and might still head off such a confrontation and challenge to its present polices and actions. It has, unfortunately, ignored all such attempts and has maintained a complete silence, indicating it is not interested in changing ARCE for the better, but in continuing on with policies that disserve the organization and its members. Genuinely concerned and responsible Management would have responded in some positive way to member concerns. Current Management has not, even now.

 

The only possible and legitimate objection that ARCE might have to making member names and addresses available for the purpose of communicating with members and soliciting their proxies is the fear, which you have not addressed in your letter to me, that I will take the information and make some other use of it, e.g., selling it off for some commercial benefit or gain.

 

From my prior correspondence it is clear that I want the information only for legitimate ARCE purposes and concerns, as outlined above. However, as a demonstration of good faith, I hereby agree that I will not sell, provide, publish or otherwise make available to other third parties, any of the membership data sought, which I will further stipulate will be confined to only the complete names and address of all present members and nothing more.

 

I cannot be more reasonable than that. If in the face of this offer ARCE continues to attempt to interpose its Privacy Policy in an attempt to prevent me from putting these genuine, bona fide issues about ARCE Management to the members, if it fails to engage in dialog and to act to correct the problems currently existing within the organization, then it will be very obvious what present Management’s intentions are and I will have to proceed to the next step, which will be to the courts to seek relief for such self serving actions. I trust that will not be necessary.

 

Now that ARCE has counsel, it would be my hope that you can persuade it to constructively engage in a dialog leading to reform and the institution of organization wide change beneficial to ARCE, its members and ultimately, Management itself. Funding for ARCE programs, whether from taxpayers in the form of USAID grants, or from individual members, is in increasingly short supply. ARCE, its Management, Officers and Board owe a fiduciary duty to make the best and most effective possible use of the funds entrusted to it. We could accomplish more working together, than apart and benefit ARCE and its members by re-making it into a more professional, efficient and transparent organization and a better steward of the public and private funds with which it is entrusted. I am ready to work toward that goal with ARCE. It is still my hope that Management is, as well.

 

I will look forward to hearing further from you.

 

Very truly yours,

 

Edward D. Johnson

c.c. Alfred Wolsky, Esq.

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