# Proposed WorldMark bylaw amendment announced –



## DH1 (Aug 12, 2009)

Ref. August "Destinations" page 8 - "The Board discussed a proposed bylaw amendment and agreed to place it on the 2009 ballot.  The amendment protects the privacy of WorldMark owners and incorporates the club's policy of providing an alternative form of owner communication in lieu of allowing the WorldMark Ownership roster to be copied."

*Are they protecting Owners’ Privacy or Wyndham’s Piracy? *

Looks like WorldMark members will soon be invited to give up their statutory right of access to the Club’s membership list – regardless of how the Court of Appeals may rule.

I’ll be voting AGAINST such an amendment and admit that it will be interesting to see how many owners will be duped into thinking this really is an issue about “privacy”…


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## mtribe (Aug 13, 2009)

As an additional tid bit.  There was a lawsuit after the last elections regarding email addresses.  They lost with the essence being that their policy of charging owners to use a mailing house was effectively a change to the bylaws because the cost was onerous.  That ruling is on appeal at this very moment.  Funny, at the next possible election a proposed by law comes in.....Hmmmmmm

Isn't it interesting that they discussed and voted on this proposl at the June 8 BOD meeting but could not get in published in the AUGUST destinations?  All they say it is coming,  and we "strongly encourage " you to vote for it.  They still do not have it available online.  

As always they want to keep people uninformed.  

An interesting side note: This information was available to the BOD when information was sent to candiddates requesting information and write ups about running for the BOD.  This announcement in Destinations came AFTER all candidate materials were due, so no candidates will be able to express their opinion of this bylaw change even though the BOD has "strongly encouraged" owners to vote in favor of it.  In addition, a request for the information has been denied to candidates to they can not even begin preparing an opinion on the proposed by-law change.  

It is possible that this proposal is benign, though I seriously doubt it.  Why must they always do things that make many people leap to a negative assumption?

This is VERY VERY important.  Not having had the opportunity to READ it, I will most likely be voting NO as well.


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## DH1 (Aug 14, 2009)

My take is that regardless of the "spin" used to justify it, any proposal to "incorporate" the current policy should be opposed.  

This _current policy _ facade has been used to stifle the members' rights to have direct owner communications for some 3 years now.  Why on earth should anyone want to suppress that provision of the bylaws.

It won't matter how the measure is finally worded (packaged) as far as I'm concerned.  Any vote to incorporate the current policy is a vote to deprive members the single most important right we have under the bylaws.

Make no mistake - this issue is NOT about protecting owner Privacy.  This issue is ALL about protecting/perpetuating Wyndham's PIRACY of the boardroom control of our Club.


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## ecwinch (Aug 14, 2009)

Dovetailing into Mike's post, I do not think this by-law amendment conforms to California Code - section 8330. 8330 allows WorldMark to offer a reasonable alternative to a request for the mailing list. The lower court has already ruled that the third-party mailing option that WM offered was unacceptable due to the cost. And in that case WM offered to pay 1/2 of the cost, something they are not offering to do in this by-law amendment.

So it only stands to reason that if the court found the 1/2 offer to be unacceptable, they will reach the same opinion on this option.

And this proposal provides no option for a members communication to be included with other WorldMark mailings. Clearly handling the mailing in such a fashion would be both reasonable and in compliance with state law.

For those reasons, I think this by-law amendment fails to comply with state law in purpose or intent.


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## DH1 (Aug 14, 2009)

Well I'll defer to the experts here, but I thought the court ruled the "policy" to be void because it attempts to ammend the bylaw provisions without a membership vote.  

Do you think the court's ruling would be different if the court had ruled that a "reasonable" alternative had been offered in lieu of providing access to the membership list as required by the bylaws? 

I admit I don't really know anything about "8330" or how it could work to overrule the bylaws.


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## ecwinch (Aug 14, 2009)

DH1 said:


> Well I'll defer to the experts here, but I thought the court ruled the "policy" to be void because it attempts to ammend the bylaw provisions without a membership vote.
> 
> Do you think the court's ruling would be different if the court had ruled that a "reasonable" alternative had been offered in lieu of providing access to the membership list as required by the bylaws?
> 
> I admit I don't really know anything about "8330" or how it could work to overrule the bylaws.



The court ruled on both issues - that the alternative violated that by-laws, and that the alternative proposed was "prohibitively expensive".

_Petitioner has proposed an alternative compromise, that the mailing addresses be provided to a stipulated third party mailing house, that respondent  provide the copies of the documents to be mailed, and petitioner will share the expenses of handling and mailing those documents to the entire membership list.

This "alternative" is clearly prohibitively expensive. The alternative does not comport with section 7.1 of the By Laws, which expressly provides that the membership register shall be made available for inspection and copying, on reasonable notice, by any Member._

No, I do not think the court would have ruled differently. The policy of the WM Board violated the by-laws, and the Board failed to have the members vote on their policy.

Section 8330 is the provision of the California Code that covers a members right to request the members list. It outlines the process by which a corporation has to address such a request. Basically it says give up the list, or propose a reasonable alternative. If the member rejects the alternative, then the corporation has to go to court on the issue. It places the burden on the corporation to file suit to block the request, rather than the member having to sue to obtain the list.

The by-laws of a corporation have to conform to statutes of the state they are formed in. So while the Board can point to the By-laws as the reason for their refusal, it does not mitigate their obligation to follow state law. So even if the amendment passes, they still have to file suit to block a request if a member presses the issue. And that the alternative from the by-laws is reasonable.

http://law.justia.com/california/codes/corp/8330-8338.html


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## mtribe (Aug 17, 2009)

Have you seen the actual wording of the proposed change?  I have not.  If any one has could they put a link here.


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## DH1 (Aug 17, 2009)

mtribe said:


> Have you seen the actual wording of the proposed change?  I have not.  If any one has could they put a link here.




Nor Have I - but one assumes that whatever language they settle upon will seek to incorporate the essence of their current policy to keep the membership from having direct access to the membership list and no access at all to use of the email list.  If true, then a vote FOR such an amendment will, in my view, be a vote to perpetuate Wyndham's control of the Club.

I suspect we'll be lucky to see the actual proposed language more than a few weeks ahead of the annual meeting...


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## DH1 (Aug 17, 2009)

ecwinch said:


> _... The alternative does not comport with section 7.1 of the By Laws, which expressly provides that the membership register shall be made available for inspection and copying, on reasonable notice, by any Member._
> 
> No, I do not think the court would have ruled differently. The policy of the WM Board violated the by-laws, and the Board failed to have the members vote on their policy.
> 
> ...




Thanks for your explanation here... but I'm still having trouble with the concept.  If the bylaws have to conform to the statutes, then why didn't the court find that the "alternative policy" (which seems to be patterned after "8330") was controlling?  I'm thinking your answer above is correct - i.e. the policy does not comport with the bylaws and even though such an alternative is provided in "8330", that statute does NOT trump the bylaws.

On the other hand, shouldn't we worry that if the bylaws were to be changed by membership vote to adopt the alternative policy that then, by definition, the alternatvie policy would be deemed by the membership (and thus the courts) to be reasonable?

Guess I am doubting that a court would rule in favor of a member challenging the reasonableness of the policy when the membership has duly adopted that policy into its bylaws...


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## ecwinch (Aug 17, 2009)

DH1 said:


> Thanks for your explanation here... but I'm still having trouble with the concept.  If the bylaws have to conform to the statutes, then why didn't the court find that the "alternative policy" (which seems to be patterned after "8330") was controlling?  I'm thinking your answer above is correct - i.e. the policy does not comport with the bylaws and even though such an alternative is provided in "8330", that statute does NOT trump the bylaws.
> 
> On the other hand, shouldn't we worry that if the bylaws were to be changed by membership vote to adopt the alternative policy that then, by definition, the alternatvie policy would be deemed by the membership (and thus the courts) to be reasonable?
> 
> Guess I am doubting that a court would rule in favor of a member challenging the reasonableness of the policy when the membership has duly adopted that policy into its bylaws...



The court rejected the alternative policy because it violated the by-laws. In doing so it offered the opinion that alternative policy was "prohibitively expensive".

But even if this alternative policy is codified into the WM by-laws, the by-laws cannot trump state statute. And 8330 is very clear on the process that BoD has to follow, if the requestor rejects the alternative policy. 

So the only thing this by-law amendment does is provide the Board with a defense when they go to court. Yes, I am concerned that a judge will have the opinion that even if the alternative is prohibitively expensive, it represents the will of the membership.


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## ecwinch (Aug 19, 2009)

Well the official language is up on the WM website. If it was not for the history involved, I would probably be of the opinion that it is an almost reasonable compromise. My immediate concerns are:

- the language it is too ambiguous and subjective
- does not comport with CA law. Still have to go to court to protect the list
- the cost issue is still a challenge given the court's ruling
- is silent on electronic communication

Particularly when the Board communicates with the members to influence voting and that communication is funded by the Club. A classic example is the website that outlines the by-law amendment itself. The Board is recommending that the amendment be approved, and provides some rationale for that opinion. But there is no dissenting opinion being offered.

So effectively the Board's opinion is communicated at no charge, but owners that oppose the amendment must cough up almost $145,000 to communicate an opposing opinion. Hardly seems like a fair policy.


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## ecwinch (Aug 20, 2009)

*Need someone to argue the Pro position*

I am in the process of putting together a informational blog on this issue. I would like to present a balanced outline of the underlying issues. To do that adequately, I need someone to help write a Pro position in support of passing this amendment. I do not think the Pro position that the Board has published is sufficiently detailed. I intend to present their position, but in order to have some balance, I would be interested in a more detailed position. If anyone is interested in doing this, please PM me.

Thanks


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## ecwinch (Aug 23, 2009)

For those interested, here is my blog on the by-law amendment. I tried to present a balance case using the WorldMark Board's statement as the FOR position. 

http://wmbylaws.wordpress.com/

I have asked the Board to allow a dissenting opinion on the WorldMark Election website in order to provide equal time and a fair electoral process. Hopefully they will dispel some of the criticism of their communication policies and will allow someone to present the opposing viewpoint.


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## mtribe (Aug 24, 2009)

I appreciate this Eric.  Good work.  I really hope it gets posted but having made many similar requests doubt it.  Having it sent it is VERY helpful in any case.  Their denying any opposing stance could be used in any potential challenge and since there is already an appeal on the courts ruling on the policy will likely not even require a seperate action.


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## ecwinch (Sep 5, 2009)

The site has been updated to reflect some additional information the Board provided regarding their support of the by-law amendment.

http://wmbylaws.wordpress.com


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## DH1 (Sep 7, 2009)

Gee, the bottom line is that the Club's presentation of this bylaw amendment issue doesn't square with the Court's opinions...

On the matter of privacy for example, it fails to acknowledge the Superior Court's opinion that, _“No right of privacy protects such disclosure where members have the express right to contact fellow time share members.” _

On the rights of members to have access, it also fails to acknowledge the Court's opinion that the bylaws _“..grant WorldMark members the specific right of access to the membership register, a right separate and in addition to the rights of members under the Corporations Code section.”_

What purpose is being served by the Club in failing to mention that the Superior Court ruled _“..that the WorldMark membership register, including names, addresses, email addresses where available, telephone numbers, and voting rights shall be made available for inspection and copying, upon written demand and reasonable notice,..”_

Can't help being disturbed at the obvious bias seen in the Board's presentation of this issue.  Can't help wondering just why the Club has appealed the Superior Court's ruling?  Can't help wondering to what end such bias is actually intended?

I'm led to conclude this is definitely NOT ABOUT MEMBER PRIVACY!


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