«This arbitration concerns the management of the Islamic Society of the East Bay (ISEB), a religious nonprofit corporation which runs a mosque. The ...»
IN THE ARBITRATION OF
Alam Mustafa, Bilal Murtaza,
Qadir Mohiuddin Mohammad,
Khalid Baig, Jamal Qureshi,
Raffath Shareef, Rehana Markar
This arbitration concerns the management of the Islamic Society of the East Bay (ISEB), a
religious nonprofit corporation which runs a mosque. The evidentiary hearing took place on December 2-5,
2014, and March 9-11, 2015. The parties appeared personally, although not all parties were there every day, and through counsel. Paul deLorimier, Esq. appeared on behalf of Alam Mustafa, Bilal Murtaza, Qadir Mohiuddin Mohammad, and Fazale Sharif. Omair M. Farooqui, Esq., appeared on behalf of Khalid Baig, Jamal Qureshi, Raffath Shareef, and Rehana Markar. Carl A. Sundholm, Esq., appeared on behalf of Respondent and Cross-Complainant Jamal Qureshi. 1 Both sides recorded the proceedings. At the close of the hearing, all parties rested their cases and counsel confirmed that they had the opportunity to present all evidence they wished to present. The parties filed post-hearing briefs, the last of which was received on April 20, 2015.
On May 11, 2015, the arbitrator issued an Interim Decision, containing most of the findings and conclusions of this final decision, and ordering new elections of directors using different membership lists than the then-acting Board had used in 2014 and was intending to use in 2015. The arbitrator invited further briefs in response to the proposed ruling and then scheduled further oral argument, which took place on June 18, 2015 because of scheduling difficulties. At the close of the oral argument, the arbitrator ordered an additional day of evidentiary hearing, which took place on July 8, 2015. The focus of this hearing was on the arbitrator's questions concerning who should be permitted to vote in the elections contemplated by the Interim Decision. After the close of the evidence, counsel were directed to meet and confer to attempt to agree on the voter lists based on the criteria stated in the Interim Decision, and to try to agree on the manner of the election. That process did not result in any agreements.
At the outset, given the nature of the dispute and the possibility that members of ISEB community who were not present at the hearing will read this opinion, the arbitrator wishes to make a few things clear.
Although the parties have strong feelings about the underlying reasons for the dispute and expressed negative opinions about one another’s motivations and management of ISEB, none of these factor in the arbitrator’s decision. This is not a judgment of moral right and wrong, and who has been a 1 I apologize in advance if I misspell anyone’s name (some of which are spelled various ways on the documents) or through clumsiness cause offense.
good/honest/moral or bad/dishonest/corrupt director of this mosque. Nothing in this decision should be construed as an endorsement or criticism of anyone’s policies, goals or actions. Indeed, in the issues that are core to this decision, both sides received legal advice that supported their actions. Unfortunately, those legal opinions were inconsistent and it is left to this arbitrator, an outsider to the community and its history, to render a decision about its corporate management.
The arbitrator has now reviewed the oral testimony, the exhibits, and the arguments of counsel, and makes the following findings and decisions.
Background and Litigation History ISEB has operated more than 20 years and is governed by a charter entitled Constitution, which operates as its Bylaws and has been amended by the membership from time to time. There were disputes concerning an election for the board of directors in the summer of 2013. The board has nine members, three of which are elected every year to serve three year terms. At the time of the dispute, there were six members continuing their terms (“carryover members”) and three members were newly elected.
Complaints were made challenging the propriety of the election of the three new members. Disputes about whether the three newly elected members should be allowed to participate in board decisions resulted in the board members meeting separately as two boards, one with the newly elected members and one without, each claiming control of the organization.
For ease of reference, I will refer to the various boards acting after June 2013 as the Baig board (Dr. Khalid Baig was the Vice-President of the 2012-2013 board and was nominally leading the carryover board until a new president was elected), the Ahmed board (Mushtaq Ahmed was elected as president at the first meeting of the alternative board, consisting of the three newly elected members and two of the carryover members, Qadir Mohiuddin and Fazale Sharif, who objected to the Baig board failing to allow the newly elected members to participate), and the Waqar Khan board (Waqar Khan was appointed director by the Baig board after it removed Messrs. Mohiuddin and Sharif, and then was elected president on October 16, 2013; the first name is necessary because of the other Khans featuring in the narrative).
The Petitioners in this case are the members of the Ahmed board other than Mr. Ahmed. The Respondents are the members of the Baig board; other directors also joined Respondents in their affirmative claims. The Petitioners in this arbitration assert that the Baig and Waqar Khan boards improperly removed Petitioners, and thereafter ran the ISEB without legal authority.
The Alameda County Superior Court ordered this dispute to arbitration based on the record before it, including the First Amended Petition for Arbitration filed by Petitioners and the Verified Cross-Complaint Under Corporations Code §9418 filed by Mr. Qureshi and asserting arguments in favor of all Respondents.
There were actually several lawsuits, a request for a hearing before the Shariah Council, and a number of twists and turns, but I will limit the history to the key events relevant now.
In a separate lawsuit, on November 26, 2013, the court ruled that Mushtaq Ahmed was not eligible to run for reelection under the Bylaws because he had served two prior terms, one of which was a partial ISEB Mngmt Decision p. 2 term but which the court held counted as a term under the Bylaws. The court found that Mr. Ahmed’s election was void ab initio, and ordered a new election to replace him. In yet another lawsuit, on February 4, 2014, the court held that the Khan board could not require ISEB members to fill out a new application as a condition for voting in that replacement election, but could require in-person voting with photo identification; the Waqar Khan board renoticed the election and carried it out in compliance with this directive.
On April 3, 2014, the court granted the petition for arbitration and denied respondents’ request for a judicial determination, ordering all the issues in the petition and cross-complaint to arbitration. On July 22, 2014, the court appointed me to be the arbitrator. The arbitration was set for a hearing in early December 2014, but the four days set aside for the hearing were insufficient to complete the testimony, so the additional hearing days in March 2015 were added. Thereafter, the arbitrator scheduled one additional day of testimony.
Findings of Fact The burden is on the Petitioners to prove their case by the applicable standard of proof, which is a preponderance of the evidence. Accordingly, my findings are based on that standard, which is far less than a certainty.2
1. The ISEB Constitution provides for annual elections in June of each year to elect three new board members whose term begins July 1 and ends three years later on June 30. (Art. IV, §2.b, Exhibit A3p.22) Generally, the election is held around the time of and in conjunction with the annual general body membership meeting, which is held the last Saturday in June.
2. In practice, the election is managed by the Election Committee, the head of which is appointed by the Board of Directors. The Election Committee creates a roll of eligible voters (in conjunction with the Membership Committee), and distributes election materials to the membership both for nominations to the board and for the election itself. (Art. IV, §2.d, Ex. A3p.22) Members must confirm their belief in certain religious tenets, be eighteen years old, file an ISEB membership form with the ISEB office, pay the amount set by the Board of Directors “for construction, operation, and membership fees” by December 31 of the year before to be eligible to vote in the subsequent year. (Art. II, §1, Ex. A3p.18) Under the Bylaws, no nominee can be on the Election Committee (Art. IV, §2.e, Ex. A3p.22), which by tradition runs independently of the board.
In the first half of 2013, the Election Committee was chaired by Alam Mustafa, who had held the position for approximately 18 years. He described the process by which the roll of eligible voters is created.
In 2009, the Bylaws were amended to provide that the election committee will audit the membership before any election or vote. (See Art. II, §4.b, Ex. A3p.19) The Membership Committee provides its list of 2 For readers without a legal background, a preponderance of the evidence is often expressed as requiring 50.1% probability in the judgment of the finder of fact, who in this case is the arbitrator.
ISEB Mngmt Decision p. 3 members and the Election Committee compares that list with records of bank deposits and receipts in the categories of payments which can comprise the annual member’s dues, which under the Bylaws may be for construction, operation or membership fees. (See Art. II, §1.d, Ex. A3p.18) Mr. Mustafa provided the cover sheets for the audited membership lists in 2011, 2012 and 2013. (Ex. E39)3 The amended list is returned to the Membership Committee and posted on the bulletin board available for members to see.4 At the time of the election, the Membership Committee provides the Election Committee with sheets of address labels to attach to envelopes to the membership containing initially, nominating papers, and later, the ballot for the election. The ballots are stamped with blue ink and marked with a sticker containing a tracing number, which allows the Election Committee to check at the time the ballots are submitted to be sure no one votes more than once. Mohammad Khan, who replaced Mr. Mustafa as chair
of the Election Committee in mid-2013, described how votes were counted in the August 2013 election:
ballots were collected from the ballot box and the mail box, they were opened with the committee members present, the labels on the ballots were compared to the list to confirm their validity, and the votes were then tallied. Mr. Mustafa agreed that this described the methodology he used in prior elections.
3. In June, 2013, the Election Committee chaired by Alam Mustafa found there were four nominations for directorship positions but one, Vazir Mansuri, was ineligible because he had not been a member at the end of 2013 as required by the Constitution. The Election Committee determined that therefore there were only three eligible candidates and on June 10 announced that those three were elected (Ex. D25), without obtaining the board’s approval for this action. Indeed, Mr. Mustafa testified he acted contrary to board direction, but he believed the Constitution required that Mr. Mansuri not be included on the list.
Mr. Mansuri had been in an ongoing dispute with ISEB about his membership status which had been submitted to the Shariah Council for determination. Sometime after May 29, after hearing from Mr.
Mansuri without the ISEB present, the Shariah Council informed the board that ISEB would be given the 3 Respondents challenge whether these audits ever took place. Mr. Mustafa’s lists mention a number of people who participated in the audits, including respondent Raffath Shareef in one year. Ms.
Shareef testified that she did not participate in the audit, although she did review some records. Given Mr.
Mustafa’s testimony, and the fact that a second audit in 2013 conducted by Mr. Mustafa’s replacement confirmed that the voter list was accurate (the only exception being one member who paid dues but whose membership application form could not be located), I find that Mr. Mustafa and others did conduct audits.
4 There were many disputes about how long the list was posted, and whether Mr. Mustafa, Hamid Ali (the Membership Committee chair), Mushtaq Ahmed (the board president at one time), the Imam, and others had special access to lists of members with contact information. The Bylaws provide that membership lists, including names, addresses, phone numbers and email addresses, shall be kept confidential. (Art. II, §5, Ex. A3p.19) I do not find persuasive the evidence provided by Respondents to demonstrate that certain people, in particular Mr. Ahmed, had special access to contact information for the members and used it for improper electioneering. All that was proven is that he actively campaigned, which does not violate any rules.
ISEB Mngmt Decision p. 4 opportunity to refute Mr. Mansuri’s claims, but if not, the Council recommended that he be treated as a member. (Ex. E12) On June 6, the board voted to reinstate Mr. Mansuri to membership and later made that reinstatement retroactive to make him eligible to run for director in 2013. (See Exs. E40, E15, E21) The ISEB board determined that the Election Committee should not have decided or announced the election results and there would have to be an election (Ex. E21), and on June 18 informed Mr. Mustafa that he had been removed as chair of the Election Committee. (Ex. E19)5 By this time, it was not possible to send out the ballots and hold the election along the usual time lines before July 1, and the holy month of Ramadan further delayed the election. On June 23, outgoing board president Wajahat Abdulla notified the community that the election would be delayed and circulated a new nomination form. (Ex. E18) On June 25, Mr. Mustafa submitted his resignation from the Election Committee. (Ex. E20)