Gerber/Hart Library has removed the voting rights of its members in a newly released undated version of its bylaws.
In addition, the LGBT library has responded to Windy City Times questions posed in January, after the newspaper discovered the LGBT library was moving amid questions surrounding its non-profit compliance.
WCT had repeatedly asked for information on current Board President Karen Sendziak's term and whether or not the organization was in violation of its bylaws, the last known copy of which dated back to 2000.
On March 20, Sendziak released responses and indicated that a copy of the bylaws would be posted on the organization's website (they are now available at: www.gerberhart.org/GH_Bylaws.pdf&; .
Both documents together show an organization that has become far less accessible to members (which Sendziak said totals at 60), with directors making all decisions.
Most significantly, members are no longer eligible to vote.
"No member of any class shall have the right to vote" for board members or any other matter, the bylaws now read. The new bylaws do not state that members can request meetings, which they could previously do by a one-third majority. Now, meetings are to be called by the board or board president. The location of meetings will also be chosen by the president or board, and the purpose will be "to inform the members of such matters concerning the Corporation."
The change is a marked difference from the 2000 bylaws, in which members voted and could call meetings. However, it remains uncertain if the bylaws were changed legally.
According to former board member Sukie de la Croix, the organization was operating under the old 2000 bylaws until at least July 2011, when he left the board.
The 2000 bylaws stated: "Each member shall be entitled to vote at the annual meeting in the election of the Board of Directors and at any meeting of the membership. Members shall also be eligible to vote to amend the bylaws of the corporation."
That document goes on to state that the board of directors may change the bylaws "where notice of such proposed action has been announced in the notice of such meeting."
According to Sendziak, Gerber/Hart held no annual meeting in 2011, a violation of the Illinois Not For Profit Corporation Act. This violation does not invalidate the organization. However, if Gerber/Hart fails to hold an annual meeting within 15 months of its last one, voting members could submit a written request for a meeting within 60 days. Following, the circuit court can order that such a meeting be held.
It is not known how the organization changed its bylaws to take away voting rights without its voting members' approval.
Unlike past versions of the bylaws, the latest is not dated, so it is unclear when it was written (WCT has requested this information from Sendziak).
The new bylaws, however, appear to react to recent questions raised by community members and WCT reports.
Under old rule, board members could only serve four consecutive one-year terms before taking a year off (Sendziak is on her ninth). The new bylaws allow for directors to serve five consecutive two-year terms before taking one year off, making Sendziak's continued leadership compliant up to ten years.
The new document places most of the organization's operations and decisions in the hands of the board of directors and its president. The board is now charged with interpreting the bylaws, controlling funds, electing and appointing new board members, voting on all major decisions, forming committees, entering into contracts, holding meetings, keeping books, applying for grants and further altering the bylaws. It gives directors considerable freedom in scheduling and holding directors meetings as well. It also allows the president to replace board vacancies by appointment.
The latest bylaws reduce the mandated size of the board from a minimum of 10 to a minimum of three, the current number of known Gerber/Hart board members. (Stan Huntington and Don Landers are the other two board members.)
The new bylaws also add that board members need not reside in Illinois, a seeming reference to the fact community members have complained that Landers lives in Arizona.
Such updated rules come after dues-paying members have alleged that annual meetings have not been held in at least two years, that regular meetings have not been made public and that elections with members have not occurred.
All in all, the updated bylaws provide just one right to members: the right to inspect meeting minutes and books upon request.
Membership is now determined on an application basis (this process was not previously defined in the bylaws), and applicants are accepted with payment of annual dues of $25 or more. Members who do not pay annual dues are deemed to have resigned and must re-apply. The bylaws do not state if application acceptance is dependent upon other criteria.
The bylaws contain another significant addition: they shield board members from legal recourse. Under the new bylaws, board members are indemnified against legal judgments, fines and attorney's fees, so long as the board decides that a person is eligible and acted with correct intentions. The organization can also purchase insurance to protect one of its own against liability. Such protections are common for organizations but are new additions to Gerber/Hart bylaws.
Gerber/Hart has struggled to stay compliant in recent years. Its IRS 990 form was filed more than two months late for 2010. In 2009, de la Croix was listed as a board member on a 990, when he in fact joined the board in late 2010.
But perhaps the most significant question is whether or not such bylaws were adopted legally.
Ryan Oberly is an attorney at Mosher & Wagenmaker, LLC, specializing in non-profit law. Oberly said that, "if the bylaws grant the members the right to vote on amendments, then the board of directors are not authorized to unilaterally amend the bylaws without the members' approval."
Oberly also noted that the Illinois Not For Profit Corporation Act further mandates that organizations with voting members provide notice to members of proposed amendments and allow them to vote.
In other words, it is possible that Gerber/Hart's members would have had to vote on bylaws that stripped their voting rights, but several members report that no such vote was announced or took place.
WCT has asked Sendziak to clarify how and why such changes were made without an annual meeting in a list of follow-up questions. Paula Cozzi Goedert, who Sendziak has indicated is the library's non-profit attorney, was not available for comment in time for publication.
WCT will update as details become available.
Sendziak's response to WCT's initial questions are published in full here:
I want to apologize for the delay in getting these responses to you. As you know, Gerber/Hart is an all-volunteer organization and our team has been working diligently on a variety of projects, including preparing for our upcoming move. To facilitate our ability to respond to your questions in the most accurate manner, we had to review our own records and documentation, which took a bit of time to process. We appreciate your interest in Gerber/Hart and recognize how invaluable the work of both Windy City Times and Gerber/Hart is to the LGBT community. Your professional and responsible coverage of our organization will support our ability to continue to attract supporters, donors and members who will ensure the sustainability of Gerber/Hart for years to come.
Sincerely,
Karen Sendziak
WCT: Why is Gerber/Hart moving?
Karen Sendziak: The space was no longer ideal for our library as the configuration included unusable space for our current needs. Most importantly, the Board recognized that the current economic climate would make it an opportune time to look at new spaces.
WCT: When did Gerber/Hart decide to move and did the board vote on this decision?
KS:Gerber/Hart decided to move in December. The Board voted on this decision.
WCT: Is the library purchasing property or renting?
KS: Gerber/Hart will be renting the property.
WCT: What are the anticipated costs of the move?
KS: Gerber/Hart is currently in the process of obtaining estimates from various moving companies.
WCT: How many dues-paying members does Gerber/Hart have? Are these all voting members?
KS: Currently, Gerber/Hart has sixty dues-paying members. None are voting members.
WCT: How long has the current president served in that capacity?
KS: Eight years and two months.
WCT: Are there any compensated positions within the organization? If so, who are they and what are their salaries?
KS: There are no compensated positions at Gerber/Hart.
WCT: Was there a 2011 annual meeting?
KS: No.
WCT: When was the last election of board members?
KS: The last election of board members was on December 17, 2011.
WCT: Please provide the most current copy of the bylaws.
KS: The bylaws should be available on our website by the end of the day tomorrow.
WCT: What is the agency's current bank balance?
KS: As our 990 tax returns indicate, Gerber/Hart is financially sound.
WCT: Please provide a list of archival collections, both processed and unprocessed.
KS: We cannot at this time provide a list of our archival collections. Many of the collections were donated in the time before personal computers were common and the Internet came into being. Some were donated by individuals who died of AIDS in an era when there was a great stigma associated with having AIDS. These donors could not imagine that their gift would be made public beyond the borders of Gerber/Hart. This is a unique dilemma that LGBT archives face — as we recognize that some collection donors may not have been "out" at the time they donated these items. This summer, we have a full-time archives graduate student interning at Gerber/Hart. One of the intern's tasks will be to contact collection donors in order to receive their express permission to include their collection in a list that we will post on our website.
WCT: What is the name of the library's attorney?
KS: At the time we received your questions, real estate attorney Michele Kurlander was our only counsel. Paula Cozzi Goedert is also now our legal counsel for non-profit matters.
