Supreme Court, Monroe County — Not for Profit Law — Elections: Buholtz v. Rochester Philharmonic Orchestra Inc.

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Supreme Court, Monroe County

Not for Profit Law — Elections

Write in Candidates — By-laws

Buholtz v. Rochester Philharmonic Orchestra Inc.
2013/01909
Judge Fischer

Background: The petitioner, a member of the Rochester Philharmonic Orchestra, commenced a proceeding pursuant to Section 618 of the Not for Profit Law seeking to overturn an election of directors at the annual meeting of the members of the RPO.
At the annual meeting, eight candidates were nominated by the RPO Governance Committee pursuant to the RPO’s by-laws. 455 valid ballots were received, but the Inspector of Election noted that 55 ballots were received that casted votes for candidates that were not nominated by the committee. These ballots included 53 for the petitioner and between 51 and 54 votes for the other five write in candidates.

Ruling: Judge Fischer confirmed the election results of the RPO’s annual meeting.  First the court held that a losing candidate is an aggrieved member under section 618.  Secondly, the court held that the RPO’s by-laws do not permit a write in candidacy.  The court noted that, even if the inspector of elections determined that the petitioner’s write in ballots were valid, it would not have changed the outcome of the election. Ordering a new election would only be warranted if the outcome could have been affected.
In rejecting the petitioner’s argument that the write in ballots did not constitute a “floor nomination” as prohibited by the by-laws, the court found that the by-laws unambiguously provided a process by which director candidates are identified, made known to the membership, and avoid last minute or surprise nominations. The court noted that there were two methods for nominating director candidates. The first was by nomination of the Governance Committee, the other by petition. The petition must be submitted to the secretary of the board and signed by at least 25 members qualified to vote.
The court rejected the petitioner’s arguments that the Executive Committee had failed to properly establish the record date. The facts established that the record date was properly set pursuant to the RPO’s own by-laws permitting the Executive Board to act when not in meeting. The committee communicated via email as authorized in the by-laws and pursuant to Section 708(b) of the Not for Profit law. The email, the court continued, permitted all members to “hear” each other as the emails were available to all participants at the same time.
Also, the court was not persuaded by the argument that persons who became members within the year were disenfranchised. The court noted that it was not possible to set a record date to include incoming members.  Finally, the court noted that there was no evidence that the petitioner or others were not given adequate notice of the annual meeting.

Eileen E. Buholtz, petitioner; Sharon Stiller for the respondents