By Larry Repress and Sal Vitale
Virginia Military Institute Class of 1961
NOTE: This OPEN Letter was originally Sent to Mr. Thom Brashears, VMI Alumni Association COO with a request it be provided to all VMI Alumni in advance of the Special Meeting of the Association scheduled for 11 June 2022. On June 6, 2022 Mr. Sam Stocks, President of the Association Board, refused to distribute this to alumni stating, in part: “There is nothing to be gained at this point by any further back and forth over the contents and many of the assertions made in your letter…. Your complaints have been numerous and have been widely spread. From my perspective, they, like other similar efforts, have been a grave disservice to the alumni body at large, the cadets and to the Institute… You have a right to make them by whatever alternative means are available to you.”
“Nous Accusons”
An Open Letter to the Membership of the VMI Alumni Association
According to Merriam-Webster’s Dictionary, oligarchy is defined as: “a government in which a small group exercises control especially for corrupt and selfish purposes.” We invite the reader to keep this definition in mind when reading further.
History buffs among VMI alumni/ae may recall the infamous chapter in French history when its army brass and civil government, the so called Third Republic, collaborated to falsely accuse, frame and convict a Jewish army captain, Alfred Dreyfus, of treason. This conviction led to his imprisonment at the infamous Caribbean penal colony on Devil’s Island. The conviction was later shown to have been the product of rampant anti-Semitism in the French army, a sentiment widely shared in the broader French society. The vindication of Dreyfus was catalyzed by an open letter penned by the French author and journalist Emile Zola accusing the army of framing Dreyfus. Its effect was to eventually turn public sentiment against the government resulting in an investigation that led to Dreyfus’ exoneration by the Government that had convicted him. Zola’s letter, published in a prominent Parisian newspaper, opens with the declaration “J’accuse…. (I accuse)”
In the tradition of Zola, we accuse (“nous accusons)” the Board of Directors of the VMI Alumni Association of cynically depriving the membership of its right to meaningfully participate in the affairs of the Association. It succeeded in this effort by effectively disenfranchising the membership and working to rig elections to the Board of only those of its own selection. How was this effect achieved by such a small number of persons? It was astonishingly easy. Here’s how.
The Alumni Association is organized as a Virginia nonstock corporation. A nonstock resembles a regular corporation but is comprised of members rather than shareholders and the principal powers of each are the same; they can vote to elect or remove directors. According to Section 5.2 of our Articles of Incorporation (the “Articles”) those powers are supposed to be exercisable at any meeting of members. However, machinations of the Board of Directors have actually rendered them to be illusory. So, how did Section 5.2 come to be used to disenfranchise members? That was easy.
Large corporations like our association have members widely dispersed across the country, in the case of VMI even internationally. Therefore, it is difficult to gather members or shareholders in a single location to conduct elections. To facilitate elections, the practice has grown up to permit members to grant another member, who will be present at the meeting, a “proxy” empowering the other member to vote the grantor’s proxy according to the grantor’s instructions. Originally Section 5.2 of our Articles permitted members to grant proxies to another member to vote for them at a meeting of members but it was amended just three years ago in 2019 to actually prohibit voting by proxy! As a result, the only way a member has been able to vote in the last three years is to order his or her affairs and travel to Lexington, VA to cast that vote in person. That’s obviously easy if you live in Lexington, but difficult or, for all practical purposes, even impossible if you live, let’s say, in Phoenix or Seattle or if you are serving or working in Europe or Asia, or if you are too infirmed to go.
To put that burden in perspective, one of us recently flew coach from Virginia on a Friday afternoon to Sacramento, CA to attend a memorial service and eulogize a Brother Rat. He stayed overnight at a local hotel, rented a car, drove about an hour to the service, drove back to the airport and flew on a redeye back to Virginia on Saturday night to avoid the cost of another night’s stay, all at an out of pocket cost of over $1,000.00. There are over 20,000 VMI alumni/alumnae, many of them elderly. In our opinion, there is no reason other than incredible indifference or thoughtlessness, or perhaps to actually discourage voting, to describe the mindset of the Board members who imposed this cruel requirement that fellow alumni/ae travel to Lexington to spend five or ten minutes exercising their right to vote.
It should not go unnoted that the majority of alumni/ae, after enduring the rigors of four years at VMI, then served our country as citizen soldiers as the founders of VMI intended, many as part of military careers, and others before pursuing civilian careers all over this country and some even abroad. It is then, more than a rhetorical question to ask why, in the 21st century, when electronic communication is so easy, they are required to travel to Lexington to cast a vote for directors when the actual mood of the country is to ease voting restrictions, at least in civic affairs? Imposition of that burden on voting shows shocking disregard for the physical and financial cost the Board was willing to impose on fellow alumni/alumnae. In the three years from its adoption, the amendment would cost an alumnus living abroad or in the trans-Mississippi area, in aggregate, an effective “poll tax” of over $3,000.00 just to vote for board members. The class of 1966 probably won’t recall but the year they graduated the U.S. Supreme Court declared Virginia’s poll tax of $1.50/year an unconstitutional burden on the right to vote in government elections! Now there’s an inflation rate to rival Venezuela’s!
To make matters even worse, the physical and financial costs imposed on members’ right to vote were not sufficiently burdensome to deter the Board. They also stooped to deleting the vote-by-proxy right from the 2019 Articles by illegal means. Section 13.1-886 of the Virginia nonstock corporation code, subsections A-D, require that where members have voting rights, an amendment to articles of incorporation must be approved at a meeting of the members “by more than two-thirds of all of the votes cast by the voting group….” However, the cover letter accompanying the amended articles when filed by the Board with the Virginia State Corporation Commission, as required by law, improperly states that the right to vote for directors is, in its view, insufficient voting power to require the board to refer the amendment eliminating proxy voting for directors to the members for their approval. This letter then, if not a false document under Section 13.1-811 of the code, was in our opinion, certainly drafted with grossly negligent ignorance of the provision in Section 13.1-803 where “voting power” is actually, and you can’t make this up, defined by statute as “…the current power to vote for directors,” the precise power members held under the 2019 articles that were so summarily dismissed by the Board. Get it? Voting power under the statute is the current power to vote for directors but it is insufficient voting power to be required for approval of amendments to the Articles that limit voting powers.
What about other handicaps imposed by the Association on voting by its members? Well, to have a vote on electing or removing Board members, the only substantive power of Members, and one which is supposed to be exercisable at any meeting of the members according to the Articles, requires that an eligible entity call the meeting. The Bylaws of the association, however, make it effectively impossible for members themselves to do that. It is true that Section 3.2 of the Bylaws technically allows members to call a meeting to elect or remove Board members. But to do that requires approval by more than 50% of the members, a vote that exceeds more than 10,000 members, while the only other entity authorized under Section 3.2 is the President of the Association, a member of the Board himself.
However, the President, at a meeting of the members on April 9, actually ruled that section 3.2 cannot be used to call a meeting to remove directors even though it says it can be. He asserted instead, that directors cannot be removed except at a special meeting under Section 3.4 of the Bylaws which either he or a majority of the Board of Directors may call but not the members. If you have been able to follow the bouncing ball we have used to lead you through the Bylaws, you will see that the effect of these tortuous interpretations of the Bylaws is that the powers of members to elect or remove directors can only be exercisable by the members, and again you can’t make this up, if the President, himself a director, or the Board, obviously itself comprised of directors, consents to a meeting to hold such a vote. This gives the directors the absolute right to veto efforts by members to remove them! Incredible?
It doesn’t end there. One of the most recent insults to the voting rights of members is in the proposed agenda for the June 11 special meeting which eliminates even the façade of democracy from the election of directors. The President (supreme mullah or senior oligarch, perhaps more appropriately) of the Association has decreed that the only business the Members can conduct is to vote for a slate of directors vetted by the Nominating Committee of the Board, a power expressly not granted him or the Board by the governing documents of the Association. The only power granted the Nominating Committee in Section 2.(a) of Exhibit B of the Bylaws is to recommend members for election as directors. Nowhere is the right for non-directors to nominate Board candidates from the floor excluded in the Bylaws, no doubt an oversight the Board will try to remedy at its next opportunity
Not even a candidate for the presidency of the United States, who constitutionally is only required to be at least 35 years old and to have been born in the United States, is required to first pass inspection by a committee of citizen grandees before the hoi polloi can even cast a vote to select him/her. And citizens don’t have to travel to some small city in Virginia to cast their votes. It’s strange indeed that alumni/ae, many of whom have bravely and effectively led troops in battle and/or become successful community leaders, are deemed unfit to select and vote for candidates not vetted by the Board. It shouldn’t even be necessary to point out the obvious danger of limiting the right to select Board candidates to a few select members of the Board itself is that it can be used to keep board membership within a small coterie of like-minded persons.
The Board has used the organs of the Alumni Association, including its web site, to pillory a concerned group of alumni who came to the April 9th meeting to seek redress of grievances. The President ruled their effort to remove directors out of order after conferring with counsel because, in his view, the Association Bylaws overruled the provision in the Articles cited by the dissenters, conveniently ignoring the Virginia statute that invalidates a Bylaws provision inconsistent with the Articles. The Articles trump the Bylaws, not the other way around. The Board’s newly discovered excuse for doing this, but not the one actually used at the meeting to justify ignoring the cause of the concerned alumni, is that the dissenters did not give proper notice of their intentions to seek to remove directors.
Before you pass judgment on whether the April 9th dissenters acted improperly, consider the following. Recall the impotent position in which the Board has put members attempting to bring about change at the Alumni Association we describe above. In the three years since the assault on VMI began in 2019, the only substantive action the Board has taken is to strip members of any way to effectively try to reverse the Association’s inertia and rally it to the cause of defending VMI against charges of systemic racism and sexism. However, it didn’t cringe at being largely mute and ineffective while a beloved superintendent was toppled and the ugly tenets of Critical Race Theory insinuated itself into the sinews of VMI.
There is a maxim in the English common law dating to before the founding of our republic which was incorporated at our founding into our common law. Known by the cumbersome Latin phrase “lex non cogit ad impossiblia,” it translates that the law does not require the overcoming of impossible burdens placed on persons who would assert their legal rights. Its massaging of our jurisprudence for over 250 years has been so effective that it is seldom necessary to refer to the maxim by name anymore. However, when ignored by those who thoughtlessly or capriciously try to exercise power, it is still capable when needed of raising a loud voice against the arbitrary exercise of power by persons in positions of authority. Let’s test the procedures employed by the Association to determine whether they erect insuperable barriers to voting to remove directors.
Thus, to assert your rights under the Articles to replace directors at any meeting of the members, (i) you must first secure the approval of the persons you seek to replace to call a special meeting to exercise your right to remove them, (ii) then rouse other members to travel to Lexington to attend that special meeting in person, even if they must incur the cost and strain of traveling thousands of miles to do so, in sufficient numbers to effect your purpose, and (iii) if successful in removing directors of your choice, be limited in your choice to replace them with persons selected from a list approved by the Board before some or all of their removal. The imposing of such blatantly futile processes by an undemocratic Board that stoops to such measures is unworthy of your support.
To redress such grievances we, therefore, make the following demands:
- that the Association recognize as legitimate the results of the 9 April 2022 General Membership meeting that removed and replaced the Board;
- that all members remaining on the Board who participated in the amendments to the Amended and Restated Articles of Incorporation of the VMI Alumni Association in June of 2019 resign from the Board;
- that the Board promptly and effectively take steps to remove the impediments on members’ exercise of their franchise to vote in elections of directors discussed in this letter and vote to restore voting by proxy and to permit online voting for directors including those nominated from the floor and to include in any notice of a regular meeting of Members, upon a request of at least 10 Members, that a purpose of the meeting is to remove a director or directors;
- that the June 11 special meeting be postponed until after implementation of demand 3;
- that prior to the election of June 11 or any postponement thereof, all candidates for election to the Board of Directors and all Board members not up for reelection pledge to all alumni/alumnae that they support and will vote for implementation of demand 3;
- that all candidates for board seats and board members whose term will not expire on June 30 and who decline to take the pledge in demand 5, alternatively pledge to notice and hold online meetings at which they will inform Association Members of their reasons for not supporting demand 3 and, if applicable, why they support or supported the 2019 amendments of the Articles;
- that to facilitate future communications among members of classes, that the Board of Directors require that all Class Agents forward all communications to their class members proposed within any 16-day period by not fewer than 5 members of their class and by at least 5 members of each of at least two other classes, regarding action that should be taken by the Board of Directors but without surrender of their right to encourage that the forwarded proposals not be adopted.
We end this letter with a personal note to the Board members of 2019 who amended the Articles, the current Board members, and those hoping to be members after June 11. Several days ago, we were forwarded a poignant email from an Old Corps alumnus of a class graduating in the mid-1950s to one of his classmates about the June 11 meeting. It reads in part:
“I would very much like to accept to support our cause and visit with you and (name deleted), but the research I have done so far appears to make such a trip prohibitive.
I will continue to explore the options to get to Lexington or Dulles and join everyone at the AA meeting on June 11. I found some of those options both expensive and exceedingly long trips. In one case, 15 hours, and I still would not be in Lexington! To everyone, please be assured that I am with you in spirit, and wish that I can be there in person.
It was 66 years ago on June 12 that you and I graduated from VMI.
In the Spirit of those days, my best regards and wishes for success to you and all the other “good guys.”
Mr. Stocks et al, we assume you and your fellow Board members saw and noted his words “prohibitive”, “expensive and exceedingly long,” “15 hours and I still wouldn’t be in Lexington” used to explain why he would not be able to attend the June 11 meeting. If you did, we expect your chest swelled with pride in the affirmation of the success of your efforts to disenfranchise your fellow alumni/ae. On the other hand, perhaps our efforts have struck a sympathetic chord and, when you saw his words, they touched your heart and you did not feel pride and gratification in the contribution you made to the defeat of the efforts of at least one member of the Old Corps to participate in the governance of the VMI Alumni Association. In either case, let us and other alumni know your position. After a tally is made of your responses, we will let our anonymous fellow alumnus know of our survey results. We can pass along your names also. That is, unless you don’t want us to do that.
Sincerely and in the Spirit,
Sal Vitale. Class Agent of Class of 1961
Larry Respess, Member Class of 1961
