Washington State Department of Financial Institutions

Division of Credit Unions

INTERPRETIVE LETTERS 2004

(Formerly known as Opinions)

Interpretive Letter I-04-05

Date:
November 29th, 2004

Subjects:
Can board of directors meet in an executive session and exclude the supervisory committee members?

Must the board of directors keep minutes of an executive session? 

Dear “B”:

Thank you for your email messages dated October 20, 2004 and November 22, 2004 in which you asked questions about executive sessions held by the board of directors and the responsibility of the supervisory committee to be fully informed about decisions made by the board of directors.

Issue

Can the board of directors meet in an executive session and exclude the supervisory committee members?  Must the board of directors keep minutes of an executive session?

Analysis

To answer your inquiry, we first reviewed provisions in the Washington Credit Union Act and the “C” Credit Union’s Bylaws concerning meetings of the board of directors.

“A”

November 29, 2004

Page Two

RCW 31.12.225 (5) states that the board of directors must hold regular board meetings at least once a month.  (Note:  The board of a small credit union[1] is eligible for less frequent than monthly regular board meetings.)   The Act also authorizes special meetings of the board in certain circumstances.  See RCW 31.12.630 and RCW 31.12.474.

“C” Credit Union’s bylaws provide the ability for the board to meet in regular and special board meetings.  See Article V. Board of Directors, Section 4 Regular and Special Meetings.

Thus, both the Washington Credit Union Act and “C” Credit Union’s bylaws recognize regular board meetings and special board meetings.  Neither the Act nor the bylaws reference executive sessions of the board.  However, the practice of holding executive sessions in which attendance is limited to specific individuals is common amongst boards and governmental bodies.[2]>  RCW 31.12.335 (2) authorizes the supervisory committee to have at least one member of the committee attend each regular board meeting.  The Washington Credit Union Act does not specifically address attendance by a committee member at an executive session called by the board.

The board of directors is responsible to manage the business and affairs of the credit union.  If the board is to fully carry out its duties, it is essential that the board have full and frank discussions on all matters affecting the credit union.  Open discussion among the board members may be stifled by the presence of others, even a supervisory committee member.  The board is in the best position to judge when an executive session is necessary for the purpose of such discussions.  As a result, if the board decides to convene an executive session, the board may exclude persons who are not board members.

Further, we considered your concern about the responsibility and duty of the supervisory committee members to be fully informed as to the financial condition of the credit union and the decisions of the credit union’s board.  In order for the supervisory committee to be fully informed, the supervisory committee should have access to the minutes of regular and special meetings of the board of directors.

“A”

November 29, 2004

Page Three

The Washington Credit Union Act and “C” Credit Union’s bylaws are silent regarding minutes of a regular or special board meeting.  In the absence of clear direction in the Act, we looked to see how the legislature has dealt with this issue in parallel contexts. The Washington Business Corporation Act, Title 23B RCW, and the Washington Corporation and Association (Non-profit) Act, Title 24 RCW, require board of directors to keep minutes of board meetings.  See RCW 23B.16.010 and RCW 24.03.135.  These statutes also do not specifically address executive sessions but we note that it is anticipated that actions taken by the board of directors will be entered into the minutes or filed with the corporate records.   RCW 23B.08.210.  Minutes should contain all motions exactly as moved and a very brief description of all major activities.[3]

Conclusion

We find that a credit union board of directors may meet in an executive session and may restrict who attends the session.  While supervisory committee members may be excluded from an executive session of the board, at least one supervisory committee member may attend a regular board meeting.

In order to fulfill its statutory duties, the supervisory committee should be provided copies of the board minutes of regular and special board meetings.

It is up to the board of directors to determine whether minutes will be taken at an executive session of the board.  However, while minutes may not be kept, we encourage the board to ratify, at the next regular board meeting, any actions taken by the board in an executive session.

Sincerely,

Linda K. Jekel

Director of Credit Unions

Cc:  “D” Supervisory Committee Chair

“E” Board of Directors Chair


[1] Chapter 208-472 WAC provides regulatory relief for small credit unions.  WAC 208-472-030 allows board of directors of small credit unions to meet less frequently than monthly.   “C” Credit Union does not meet the definition of a “small credit union”.

[2] Black’s Law Dictionary defines “executive session” as follows: A session of the board or governmental body that is closed to the public and that only invited persons may attend.  See Black’s Law Dictionary, Seventh Edition, West Publishing Company, 1999, page 591.

[3]Francis, Fred and Peg, Democratic Rules of Order, Seventh Edition, published by Francis, 2003, page 39.


DCU Interpretive Letter I-04-04

Date:
August 31, 2004

Subject:
Credit unions are authorized to act as trustee or custodian for Health Savings Accounts

Dear “A”:

This opinion is in response to your question whether a Washington state chartered credit union may act as a trustee or custodian for Health Savings Accounts (HSA).  You have cited the amendments to 12 C.F.R. 721 [Incidental powers] and 12 C.F.R. 724 [Trustee and Custodian Plans] as providing authority for federal chartered credit unions to act as a trustee or custodian for Health Savings Accounts (HSA) and you have asked if a Washington state chartered credit union may invoke federal parity to provide similar HSAs.

Background:

Health Savings Accounts (HSAs) were created by H. R. 1, the "Medicare Prescription Drug, Improvement and Modernization Act of 2003," signed into law by President Bush on December 8, 2003.  HSAs are intended to help individuals save for future qualified medical and retiree health expenses on a tax-free basis.

Any individual who is covered by a high-deductible health plan may establish an HSA. Amounts contributed to an HSA belong to the individual establishing the account and are completely portable. Every year the money not spent stays in the account and gains interest tax-free, similar to an Individual Retirement Account (IRA). Unused amounts remain available for later years (unlike amounts in Flexible Spending Arrangements that are forfeited if not used by the end of the year). Tax-advantaged contributions can be made in three ways: the individual and family members can make tax deductible contributions to the HSA even if the individual does not itemize deductions; the individual’s employer can make contributions that are not taxed to either the employer or the employee; and employers with cafeteria plans can allow employees to contribute untaxed salary through a salary reduction plan. Funds distributed from the HSA are not taxed if they are used to pay qualifying medical expenses. To encourage saving for health expenses after retirement, HSA owners between age 55 and 65 are allowed to make additional catch-up contributions ($500 in 2004) to their HSAs. Individuals eligible for Medicare may not open an HSA.

Additional information about HSAs is available from the Public Affairs Office of the U.S. Department of Treasury.  The information is also available on the Treasury web site at http://www.ustreas.gov.

Analysis:

A.  State Incidental Powers Provision

The Washington Credit Union Act grants a Washington state chartered credit union (WaSCUs) certain incidental powers.  A WaSCU may:

Exercise such incidental powers as are necessary or convenient to enable it to conduct the business of a credit union.

 RCW 31.12.402 (23) (state incidental powers provision).

The Director of Credit Unions (Director) issued an opinion No. 01-8 dated November 8, 2001 citing the criteria to determine whether new activities are authorized as incidental powers for a WaSCU.  A new activity to be authorized under incidental powers must meet one of the following:

  1. the three-part test derived from the U.S. Supreme Court decision in Nationsbank of North Carolina v. Variable Annuity Life Insurance Co., 513 U.S. 251 (1995) (VALIC) or
  2. the test in 12 C.F.R. 721.7.

WaSCUs are authorized to provide other tax-advantaged savings plans for retirement, pension, and education savings accounts for their members.  As with an Individual Retirement Account, an individual who maintains a HSA has an option to direct the investment choices.  HSAs meet the criteria for a new activity authorized under incidental powers as follows:  (1) HSAs help meet the mission of WaSCUs to promote thrift among its members, (2) HSAs are a logical outgrowth of other tax-advantaged savings plans authorized by WaSCUs, and (3) HSAs involve the same kinds of risks already part of the business of credit unions.

“A”

August 31, 2004

Page Three

B.  Federal Parity Provision

WaSCUs are granted federal credit union (FCU) powers in accordance with RCW 31.12.404.  Specific findings  by the Director are required to grant WaSCUs any FCU powers and authorities that the FCU’s received after July 22, 2001.  The required findings are as follows:

 …if the director finds that the exercise of the power and authority serves the convenience and advantage of members of credit unions, and maintains the fairness of competition and parity between credit unions and federal or out-of-state credit unions.

RCW 31.12.404(2). 

The Director’s authority to make such findings and to interpret Chapter 31.12 RCW generally has been delegated to the Director of the Division of Credit Unions. 

Effective July 29, 2004, the NCUA amended its regulations to allow federal chartered credit unions to provide member HSAs as an incidental power pursuant to 12 C.F.R. 721 and as a tax-advantaged savings plan pursuant to 12 C.F.R. 724 with a new title of Trustees and Custodians of Certain Tax-Advantaged Savings Plans. 

In accord with the requirements of RCW 31.12.404, the Director finds that granting  WaSCUs the power and authority to serve as trustee or custodian for member HSAs serves the convenience and advantage of members.  In addition, the Director finds that authorization of WaSCUs to provide member HSAs maintains the fairness of competition and parity between state-chartered credit unions and federal credit unions.

 Of course, in exercising an FCU power, WaSCUs must comply with any restrictions or limitations on the specific exercise of the power under NCUA statutes or rules.  RCW 31.12.404(3).

Conclusion:

WaSCUs have two choices of statutory authority for member HSAs.

  1. WaSCUs may serve as a trustee or custodian for member HSAs within the category of activities of preapproved incidental powers under RCW 31.12.404 (23).  The Director expects WaSCUs will comply with all applicable guidelines for trustees or custodians of HSAs as established by the Internal Revenue Service and, any guidance on HSAs published by the U.S. Department of Treasury.

OR

“A”

August 31, 2004

Page Four

 Conclusion continued:

  1. WaSCUs may choose to invoke federal parity for member HSAs as an incidental power for federal chartered credit unions and by using federal parity, the WaSCU must comply with the restrictions or limitations contained in 12 C.F.R. 721 and 12 C.F.R. 724.  The WaSCU should show in the Board minutes when it invoked federal parity for authority to offer member HSAs.

 

Sincerely,

Linda K. Jekel

Director of Credit Unions


DCU Interpretive Letter I-04-3

Date: June 2, 2004

From: Linda Jekel, Program Manager

Subject: Effect of conversion from Federal chartered credit union to Washington State chartered credit union

Dear Ms. "A":

Issue

You have asked if the Division of Credit Unions’ (Division) interpretation to the question about the effect of the conversion of a credit union from a federal charter to a Washington State charter under Charter 31.12 RCW has changed since the Director of Credit Unions, Parker Cann, issued a draft opinion on November 13, 2001 to “B” Credit Union. (The draft opinion is attached.)

Analysis

RCW 31.12.467 authorizes a federal credit union (FCU) located in Washington to convert to a Washington State-chartered credit union (WASCU). In addition, this section provides:

  1. The assets and liabilities of the federal credit union will vest in and become the property of the successor credit union subject to all existing liabilities against the federal credit union. Members of the federal credit union may become members of the successor credit union.

RCW 31.12.467(3).

Consequently, by operation of law, all of the FCU’s assets and liabilities become the property of the WASCU. In practice, for purposes of credit union regulation, the division assumes all of the FCU’s shares, deposits, liabilities, assets, investments, personal and real property, contracts, share/deposit insurance, directors, officers, employees, etc. as unchanged by the conversion. Typically, members and fields of membership are also unchanged from the FCU to the WASCU in the proposed articles of incorporation and bylaws filed with the Division and the Secretary of State. See RCW 31.12.467(2). If the FCU wants to add to its field of membership, the field of membership expansion is typically approved after the charter conversion is completed.

Conclusion

Unlike a merger, where two credit unions become one, in a conversion, there is one credit union from start to finish. The effect of the conversion is that the WASCU is a continuation of the FCU. The FCU merely changes its organizational form to that of a state-chartered credit union instead of operating under a federal charter.

I concur with the above conclusion.

Sincerely,

Linda K. Jekel
Director, Division of Credit Unions


DCU Interpretive Letter I-04-2

Date: April 30, 2004

From: Linda Jekel, Program Manager

Subject: Credit Union serve as Treasury tax & loan depositories

Cathryn Hohl
Senior Attorney
Federal Reserve Bank of St. Louis
411 Locust Street
St. Louis, MO 63102

Subject:            Your letter dated April 19, 2004
Interpretive Letter No. 04-02

Dear Ms. Hohl:

This letter is in response to your above-noted letter, in which you requested my interpretation on whether Washington state-chartered credit unions (“Washington credit unions”) may serve as Treasury tax and loan depositories and depositories of federal taxes under 31 C.F.R. Section 203.3(b) and applicable Treasury Department regulations.

More specifically, you have requested my interpretation whether Washington credit union institutions:

  1. that they have either general or specific authority to maintain a Treasury Tax and Loan account and/or, if applicable, a Treasury Investment Program balance, from which the balances are payable on demand without previous notice of intended withdrawal;
  2. that they have either general or specific authority to pledge collateral, consistent with 31 CFR Part 380, to secure funds in the Treasury Tax and Loan account and/or, if applicable, the Treasury Investment Program balances; and
  3. that they are otherwise eligible under 31 CFR Part 203, as amended from time to time.

You have indicated in your letter that federally-chartered credit unions (“federal credit unions”) do satisfy these three requirements, based on applicable rules set forth at 12 C.F.R. Section 701.37.

NCUA Insurance

Washington credit unions and deposits are insured by the administrator of the National Credit Union Administration (“NCUA”) through the National Credit Union Share Insurance Fund (“NCUSIF”) See Section 31.12.408 of the Revised Code of Washington (“RCW”).

Analysis and Conclusion

NCUSIF credit unions

My conclusion is that NCUSIF credit unions satisfy the three requirements above.

First two requirements.  NCUSIF credit unions satisfy the first two requirements above by virtue of RCW 31.12.136(1), commonly known as the “parity provision.”  This provision grants Washington credit unions the powers and authorities that were conferred on federal credit unions as of January 22, 2001, notwithstanding any other provision of law.  My understanding is that federal credit unions satisfy the first two requirements above, by virtue of 12 C.F.R. Section 701.37.  My research indicates that this section has not been amended since 1989.  Consequently, Washington credit unions possess the requisite authority to satisfy the first two requirements above.

Third requirement.  NCUSIF credit unions satisfy the third requirement by virtue of their NCUSIF insurance.  31 C.F.R. Section 203.3(b).

I hope that this opinion has been responsive to your request.  Please feel free to contact me at (360) 902-8778 if you would like to discuss this matter further.

Sincerely,

Linda K. Jekel
Director, Division of Credit Unions


DCU Interpretive Letter I-04-1 Redacted Version

Date: January 22, 2004

From: Linda Jekel, Program Manager

Subject: Member Petition for Special Meeting

Dear “A”:

On January 16, 2004, you delivered to the Division of Credit Unions of the Washington State Department of Financial Institutions (hereinafter, “DFI”), on behalf of a group of petitioners for Special Membership Meeting of “B” Credit Union (“B”), a request for an opinion regarding (1) when the receipt of a Petition for Special Meeting (hereinafter, “Petition”) should commence and (2) the issues addressed by the Petition.

INTRODUCTION

Petition for Special Membership Meeting.  The Petition is a written request to the Secretary of “B’s” Board of Directors (hereinafter, “Board”), made pursuant to Article III, Section 4 of the Amended and Restated Bylaws of “B” (hereinafter, “Bylaws”) and delivered as of January 14, 2004, calling for a Special Membership Meeting (hereinafter, “Special Meeting”), for the following purposes:           Vote to rescind the adoption of the proposed “Plan of Conversion whereby “B” Credit Union will change from a Washington state-chartered credit union to a Washington state-chartered mutual bank,” which was presumptively adopted at a Special Meeting held on November 3, 2003 (hereinafter, “Plan of Conversion”).

Vote to remove all nine (9) of the “B” Credit Union Board of Directors due to an allegation by the group of members that proffered the Petition (hereinafter, “Petitioning Group”) that they have breached their fiduciary responsibility in promoting and implementing the Plan of Conversion.

Elect Interim Directors pursuant to Article V, Section 13 of the Bylaws to replace each Member of the Board.

“B”’s Present Position Statement Regarding Methods of Review.  In making your request for an opinion, you have also asked the Division of Credit Unions to review and opine on the document that was delivered to your group from “B’s” attorney, entitled “B” Credit Union Receipt and Review of Petition" (hereinafter, “B’s” Position”).  “B’s” Position with respect to the Petition is as follows:           “B” will commence a review of the Petition to confirm there are 2,000 “valid member signatures” upon receipt of the Petition.

“B” will verify the signatures from account signature cards available from “B’s” 11 branches.

An outside audit firm will independently review and verify the signatures using the account signature cards.

As directly stated in “B’s” position:  “Once the audit firm has completed its review and validated signatures, the Board will review the petition for acceptability under applicable law.”

Only then, after “acceptance” of the Petition, will the Secretary of the Board designate a time and place for the Special Membership Meeting and “notify the members of the Special Meeting to be held within 20-30 days.”

It is unclear from “B’s” Position whether the time thresholds required in RCW 31.12.195 will be met.  Therefore, while this opinion may be in direct response to your request, it is also specifically intended for the benefit of “B” and its legal counsel.

Matters Not Addressed.  This opinion letter does not address our concerns or conclusions regarding the methods and procedures by which the Special Meeting for the pending Plan of Conversion, dated November 3, 2003 (hereinafter, “Conversion Meeting”) was conducted.  The National Credit Union Administration (hereinafter, “NCUA”) has previously disapproved the methods by which the vote was taken and the procedures applicable to the vote (hereinafter “Conversion Vote”), pending an investigation; and its investigation remains ongoing.  Only if the NCUA subsequently approves the conversion vote would approval of the Plan of Conversion be before the DFI’s Division of Banks for consideration.  Any substantive issues regarding the Conversion Meeting are separate from  the specific questions presented by your request and are not addressed in this opinion.

OPINION

Sufficiency of Form of Petition.

Composed of three (3) substantively identical forms, the Petition was signed by 3,593 persons claiming to be Members of “B”.  All three petition forms call for the same questions to be voted on by the Members at a Special Meeting.  The only difference is that one of these forms lacks a clause, which is present in the other two forms, that alleges a breach of fiduciary responsibility by the present Board in promoting and implementing the Plan of Conversion.  However, based on the DFI’s review of each of these signed forms, we conclude that the 3 forms do not vary materially in the nature of their request and that they therefore constitute, in substance, a single Petition having 3,593 signatures.

Number of Signatures.  The Washington Credit Union Act, RCW 31.12 (hereinafter, “Act”), at RCW 31.12.195(1), provides that —

“a special membership meeting of a credit union may be called by a majority of the board, a majority vote of the supervisory committee, or upon written application of at least ten percent or two thousand of the members of a credit union, whichever is less.

[Italics added.]

This requirement is reiterated in Article III, Section 4 of the Bylaws.

Assuming “B’s” membership has not substantially decreased from the 59,102 members reported in the September 2003 Call Report, the lesser amount required in RCW 31.12.195 (1) would be 2,000 member signatures.  Accordingly, since the Petition contains 3,593 signatures of persons purporting to be Members, the Petition presumptively contains more than the requisite number of signatures necessary to properly call a Special Membership Meeting.

Mandatory Date for Special Meeting.  RCW 31.12.195(3) is a controlling provision of the Act upon which “B’s” conduct must depend.  It declares:

Upon receipt of a request for a special membership meeting, the secretary of the credit union shall designate the time and place at which the special membership meeting will be held. The designated place of the meeting must be a reasonable location within the county in which the principal place of business of the credit union is located, unless provided otherwise by the bylaws. The designated time of the membership meeting must be no sooner than twenty, and no later than thirty days after the request is received by the secretary.  The secretary shall give notice of the meeting within ten days of receipt of the request or within such other reasonable time period as may be provided by the bylaws. The notice must include the purpose or purposes for which the meeting is called, as provided in the bylaws. If the special membership meeting is being called for the removal of one or more directors, the notice must state the name of the director or directors whose removal is sought.

[Italics added.]

Article III, Section 5 of the Bylaws is consistent with RCW 31.12.195(3) in requiring that the Special Meeting take place not less than 20 nor more than 30 days after receipt of request for a Special Meeting.  However, nowhere in the statute does it state that the absolute “20-30 days” requirement is tolled while the acceptability of signatures are obtained.  Indeed, the use of the term “acceptable” appears only in Article III, Section 5 of the Bylaws and in the text of “B’s” Position, and then only in the latter case in terms of “B” deciding whether the form of the Petition and propositions sought to be voted on are “acceptable” under applicable law.  It is the mandatory and absolute nature of the statute in this regard that is controlling and not the language of the Bylaws.

Therefore, notwithstanding any language in the Bylaws, the mandatory nature of the Act controls.  We conclude that the “20-30 days” requirement is absolute.  The Secretary of the Board must hold the Special Membership Meeting regarding the Petition no later than thirty (30) days after the date of receipt of the Petition.   The request was received on January 14, 2004, and the Special Meeting must be conducted by no later than Friday, February 13, 2004.  

Date for Publishing and Mailing Notice.  RCW 31.12.195(3) requires that the “[S]ecretary shall give notice of the meeting within ten days of receipt of the request or within such other reasonable time period as may be provided by the bylaws.”  Article III, Section 6 of the Bylaws adopts the “10-day rule” set forth in the statute rather than fixing another time for notice.  Accordingly, we conclude that “B’s” Secretary must publish and mail the Notice of Special Meeting to the Members no later than Saturday, January 24, 2004.

Sufficiency of Petition Itself.  We have reviewed the propositions to be voted upon at the Special Membership Meeting as set forth in the Petition, both as to language and substance.  In so doing, it is our opinion that the Act and the Bylaws permit Members of “B” to deliberate and decide upon such propositions at a Special Meeting.

Rescinding” the Plan of Conversion.  The Members are each equal, beneficial equity owners in “B”.  The Plan of Conversion, notwithstanding any merits disclosed to the Members, seeks to fundamentally abrogate their equity ownership in the credit union.  For this reason, action by all the Membership is required pursuant to RCW 31.12.464 before any Plan of Conversion may be said to have been approved by “B”.  If Members may and, indeed, are required to vote on a Plan of Conversion, it follows that it is proper for a special meeting of members to be called to “rescind” any Plan of Conversion previously voted upon.  We therefore conclude that the first proposition called for in the Petition is proper and acceptable.

Propriety of Removing Entire Board.  The Act, at RCW 31.12.246, declares, in pertinent part, that —

The members of a credit union may remove a director of the credit union at a special membership meeting held in accordance with RCW 31.12.195 and called for that purpose.

[See also Article III, Section 4 of Bylaws and RCW 31.12.195(2)]  As provided in RCW 31.12.195(3) and Article III, Section 6 of the Bylaws, any Petition to remove a director or directors must state the name or names of the director or directors to be removed.  In the form, the Petition seeks to remove all present members of the Board and has correctly stated each of their names.  Therefore, we conclude that the second proposition called for by the Petition is proper and acceptable in both form and substance.

Requirement of Interim Directors.  The Act, at RCW 31.12.246, declares, in pertinent part:

“. . . If the members remove a director [at a special membership meeting], the members may at the same special membership meeting elect an interim director to complete the remainder of the former director's term of office or authorize the board to appoint an interim director as provided in RCW 31.12.225.”

[Italics added.]

In addition, RCW 31.12.225(4) provides that “any vacancy on the board must be filled by an interim director appointed by the board, unless the interim director would serve a term of fewer than ninety days.”

The Act permits the Membership to vote for Interim Directors to fill the unexpired terms of all directors sought to be removed, up to a maximum of nine (9) in accordance to the Bylaws, Article V, Section 1.  However, since the next Annual Meeting of “B” is set for March 16, 2004, those positions with an unexpired term less than ninety (90) days need not be filled until the upcoming Annual Meeting.

Therefore, we have concluded that the third proposition for the Special Meeting is also proper and acceptable in form and in substance.

Sole Business of Special Meeting.  Based on the language of Article III, Section 4 of Bylaws and RCW 31.12.195(3), the only propositions that can be voted on at the Special Meeting are the ones listed in the Petition, which we have concluded above are proper and acceptable.

Chairing of Special Membership Meeting.  RCW 31.12.195(4) provides that “if the removal of all board officers is sought, the chairperson of the supervisory committee shall preside over the special meeting.”  Therefore, we conclude that the chair of the Special Meeting can only be the chairperson of the Supervisory Committee (hereinafter, “Supervisory Committee Chair”).

Governing Parliamentary Procedure.  On January 13, 2004, the Board adopted an Amendment to Article III, Section 9 of the Bylaws, governing parliamentary procedure (hereinafter, “January 13th Amendment”).  Based on the January 13th Amendment, Article III, Section 9 of the Bylaws now states as follows:“Article III, Section 9.  Parliamentary Procedure.  Meetings held under this section shall be conducted according to those parliamentary procedures described in Robert’s Rules of Order except as provided in any written membership meeting procedure approved by the Board.

[Italics added, which reflect the January 13th Amendment.] 

Amendment of Bylaws; Adoption of Temporary Rules.  The Division of Credit Unions would have concern regarding any latent amendments to the Bylaws, or procedural rules adopted by resolution of the Board (as now permitted by the January 13th Amendment), which could materially affect the resulting outcome of a Special Membership Meeting in a manner different than would otherwise happen if the Board did not adopt the amendments or temporary rules.

We conclude that the Board may adopt written membership meeting procedures that (1) are reasonably necessary, (2) are fair to the Membership, and (3) provide fair advance notice to the Membership of how the Special Meeting may be conducted, including the nomination and election of Interim Directors.

Presently, the Act and the Bylaws are generally silent as to how Interim Directors may be nominated at a Special Meeting (as opposed to Annual Meeting).  In the absence of “written membership meeting procedures” provided for in the January 13th Amendment, Robert’s Rules of Order Newly Revised 10th Edition ( 2000), 46 governs the procedure for nomination of directors, including nominations from the floor (Page 417) and nominations by petition (Page 424), the latter of which is expressly permitted for nominations of directors by members at Annual Meetings pursuant to Article IV, Section 2 of the Bylaws.

CONCLUDING REMARKS

Please be advised that the DFI is not in a position to offer legal advice concerning any of your rights and remedies as a Member of “B”, and  we recommend that both the Petitioning Group and “B” Credit Union consult with legal counsel regarding the legal issues involved in the Petition.

Sincerely,

Linda K. Jekel
Director, Division of Credit Unions