Following the recommendations of board attorney Robin Brena, made during a June 8 board meeting, the directors adopted a Jan. 1, 2010, effective day for the bylaw provision that limits MEA board members to three terms of service as a director.

The board requested Brena’s opinion after director David Glines moved to unseat board president Lois Lester during a previous meeting. He pointed out that she had been elected to her fourth term in the same election in which the bylaws were changed.

Brena told the board that the change should go into effect in 2010, because that is what the bylaw committee intended when it drafted the bylaw amendment for voter approval.

He also said the change in the bylaws should not apply retroactively. Therefore, once the rule is in effect, all board members are assumed to have not served any terms. Meaning all board members could serve three terms after Jan. 1, 2010.

The board accepted Brena’s advice, but directors Larry DeVilbiss and David Glines did not agree.

“I want to be very clear that I do not agree with this opinion,” DeVilbiss said, saying he believed members voting for the change didn’t likely read it the same way Brena did.

The second issue the board addressed is the bylaw amendment that says individuals may not be a board member if family members are employed by MEA or if he or she stands to benefit financially from the utility.

In Brena’s view, the bylaw change mixes up two sections of the bylaws. One has to do with conflicts of interest. If a board member has a conflict of interest on a particular issue, he or she is supposed to stay out of any debate and not cast a vote. However, the bylaw change makes a conflict of interest into something that affects a board member’s eligibility to serve.

He recommended the board send the change back to the bylaw committee, which can get a lawyer, and then come back with an amendment to sort out the conflicts that could then be put to a vote of the co-op’s membership.

“Until then, the board shouldn’t take any action if a conflict arises and, if they absolutely have to act before the committee returns a change, they should solicit an opinion from a Superior Court judge,” he said.

DeVilbiss asked Brena if his legal advice is to ignore the bylaw amendment, even though it is in effect.

“There isn’t any reasonable way to implement this,” Brena said. “Without any substantive challenge, the board should not act to disqualify an existing board member prior to clarification of the amendment.”

The board agreed, voting to proceed with the bylaw committee review.

Reach the reporter at darrellbreese.@alaskastar.com

This article published in The Alaska Star on Thursday, July 9, 2009.