Judge Hardaway turns down request for injunction to stay the Black Warrior EMC By-law change vote

By: John Zippert, Co-Publisher

After a three hour hearing on Friday, April 28, 2017, in the Linden Courthouse, Judge Hardaway dismissed a request by plaintiffs for an injunction to stay a mail-in election on new proposed bylaws.
The plaintiffs in the case of Rev. James Carter vs. Black Warrior Electric Membership Corporation have filed a lawsuit to compel the cooperative to operate in a more open, transparent and democratic manner in accordance with cooperative principles, Alabama law and IRS tax exemptions that Black Warrior enjoys as a rural electric cooperative providing power and other services to its members.
The plaintiffs have been seeking information on how the BWEMC is governed and operates across its 12 county area. The plaintiffs have been seeking copies of the by-laws, information on the Annual Meeting, the present composition of the Board of Directors, the boundaries of the districts from which board members are elected, the nominating committee and nominating process and many other details of the governance and operation of the cooperative.

Every household or business that has a Black Warrior power meter is a member of the cooperative and entitled to vote on major issues including the election of the board. This principle of “One Person-One Vote” is at the heart of the economic democratic functioning that distinguishes cooperatives from other forms of business organization and is also the basis of the cooperative’s special status with IRS.The Black Warrior EMC sent out a package to all members at the beginning of April including a new 25 page set of proposed by-laws, a flyer highlighting some of the changes in the new by-laws and a mail ballot for members to vote yes or no on the whole package at once. The deadline for submitting ballots on the by-law changes was May 1.
The plaintiffs in the case, represented by the Chestnut, Sanders and Sanders law firm of Selma, were seeking an injunction to block the mail-in ballot on the by-law changes or postpone the implementation of the by-law changes until the member plaintiff’s case was heard on an expedited basis. The plaintiffs wanted a full and open disclosure of how the co-op is governed and operating before a new set of by-laws went into effect.
Darryl Jones, General Manager of BWEMC and the lawyers representing him said that first there was no legal basis for an injunction to stop the by-laws vote; that the purpose of the mail-in ballot was prescribed by Alabama law and that this would allow more members to participate; and that they had already spent over $30,000 to send out ballots and had received 3,226 votes in the mail as of Friday’s hearing.
The plaintiffs argued that most members who received the by-laws package did not fully understand it and that a meeting or a set of district meetings was needed to explain the by-law changes to members. They also wanted more clarity on the scheduling of the 2017 Annual Meeting and the process for nomination and election of board members.
Attorney Hank Sanders called Darryl Jones to the witness stand and had him to place on record the operating history of the Black Warrior EMC. Jones stated that the cooperative has not had a quorum at its membership Annual Meeting for over 60 years since 1950. The lack of a quorum allows the Board of Directors to fill vacancies between meetings. Jones also stated, “ At this point no one serving on the BWEMC Board of Directors has been elected at a membership meeting. All persons on the board were selected and appointed by the board.”
Jones said the cooperative was operated in the interest of the members and you cannot force people to attend a meeting over long distances. Jones also testified that although changes were made in the by-laws, the quorum was not reduced from 5% of the membership (1300) to 3% (780) which is permissible under Alabama law and the idea of district meetings to elect the board members was not considered.
Attorney Ainka Sanders Jackson, one of the attorneys for the plaintiffs, said, “We put on our best case and I am disappointed with Judge Hardaway’s ruling. We clearly showed that the rural power cooperatives has not been operating democratically and changing the by-laws, without the membership understanding the new by-laws, will not make it more democratic. The members must remain vigilant; nominate people they want for the board; and attend and exercise their voting rights at Annual Meetings and other meetings called to determine the future directions of the cooperative. We plan to continue the case until we receive justice for the members of Black Warrior EMC.”
Persons interested in supporting the plaintiffs campaign for justice and democracy at the Black Warrior rural electric cooperative, may contact Ms. Adriauna S. Davis at the Federation’s Rural Training and Research Center, at 205/652-9676 or more information.

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