[The following Op-Ed letter is from Bob Wentworth, who has had a close-up view of CNVC’s organisational change efforts since 2012, having served as a CNVC Board member and co-architect of CNVC’s Process for a New Future, a facilitator of much of the process, and a volunteer supporting the Implementation Phase. This letter reflects his personal views of recent events.]
This week, CNVC’s new executive director will begin to hold meetings with certified trainers about CNVC’s future. In this context, I want to raise into collective awareness that, in my assessment, CNVC has been functioning illegally for the last two years.
To be clear, I am not saying CNVC has violated criminal law. However, I believe CNVC has been acting in a manner inconsistent with U.S. civil law. I realize this is a serious thing to assert. Yet, I experience these as serious circumstances.
My intention is not to make anyone “bad.” I don’t think a focus on finding fault would serve anybody. Rather, I hope to call attention to a way in which things have seemingly gone “off course,” and, thus, invite us all back towards a more life-serving path.
FAILURE TO HONOR CNVC’S CONTRACTS
The CNVC Board ratified the document “Process for a New Future” and publicly announced it in April 2014. I believe a strong case can be made that this document, and the Board’s subsequent assurances to the NVC community, satisfied the requirements for functioning as a legal contract:
- In announcing the New Future Process, CNVC made an offer to people in the NVC network.
- People from the network then accepted that offer, by doing the work that the CNVC Board invited them to do. They participated in the Synanim process, accepted Board-ratified roles in nine Working Groups, developed decisions for CNVC, and worked on the Integration Council to finalize and ratify the New Future Plan.
- The agreement involved consideration, in which CNVC promised something of value in return for receiving something of value:
- CNVC received labor from people, which was otherwise unpaid.
- In return for people’s labor in the NF Process, CNVC promised:
- “the CNVC Board is handing over power to others to make decisions that are likely to profoundly impact CNVC”;
- “The current Board and staff of CNVC will not retain a veto”;
- “once the Integration Council ratifies an integrated plan for moving forward, the CNVC Board is committed to supporting that plan [i.e., the New Future Plan]”;
- “The existing CNVC Board will be replaced using the mechanism specified by the integrated plan [i.e., the New Future Plan]”;
- “The CNVC Board… will work with the Implementation Council to address implementing those aspects of the plan that involve the current CNVC legal entity.” [Specifically, the NF Plan called for the CNVC Board to amend CNVC’s bylaws.]
Members of the NVC community, who had been specifically invited and approved to do this work by the CVNC Board, invested over 6000 hours of labor and completed their part of the contract by ratifying the New Future Plan.
As I see it, the CNVC Board then defaulted on the contract. The CNVC Board failed to transition power to the new governance structure, as CNVC had promised.
* * *
To me, this is like someone offering to sell a business, accepting the payment that had been agreed to, then saying, “I’ve changed my mind” (without offering a refund), and then declining to participate in any further discussion of the agreement.
(Can you imagine how shocking it would be to be on the receiving end of such behavior?)
I understand that the Board had concerns about the performance of the Implementation Council. While those concerns were triggered by observations, as someone close to the events involved, I believe the beliefs around which those concerns were centered were tragically mistaken. Unfortunately, there was no opportunity to dialog about those concerns and beliefs.
However, even if Board members had been accurate in the conclusions they had drawn, I believe that their personal concerns about the Implementation Council were largely irrelevant from a contractual standpoint.
As I interpret the terms laid out above, the contract was not between the CNVC Board and the Implementation Council. The contract was between CNVC and the people who worked in the Working Groups and ratified the New Future Plan.
Once the NF Plan had been ratified, the contract committed the Board to transition CNVC to “new management” — regardless of whether or not individual Board members approved of that new management. (To me, what the CNVC Board did was like a politician refusing to leave office because they don’t agree with the politics of the person elected to replace them. If such behavior is tolerated, it spells disaster for the rule of law, and for the possibility of a peaceful society.)
In summary, for the last two years, I see CNVC as operating in breach of contract.
FAILURE TO HONOR THE BOARD MEMBERS’ DUTY OF OBEDIENCE
As I understand it, legally, the members of a U.S. nonprofit Board of Directors have three “fiduciary responsibilities”: the Duty of Care (attending to their board responsibilities “as any prudent and ordinary person would”), the Duty of Loyalty (placing the interests of the organization above personal interests), and the Duty of Obedience (abiding by laws, regulations, and the governance agreements of the organization).
I interpret the current CNVC Board members as having failed to abide by the governance agreements of the organization, and thus, having failed to honor their legal Duty of Obedience.
The Process for a New Future and the New Future Plan were, functionally, governance agreements that were each established by following the prior governance agreements within CNVC. The NF Process and NF Plan were governance agreements in that they specified how certain key decisions were to be made within CNVC, and how CNVC’s governance was to be evolved going forward.
The CNVC Board had also made other governance agreements, including (1) a verbal agreement to bring onto the Board only Board members who were committed to honoring the agreements in the Process for a New Future, and (2) a written agreement (documented in Board minutes) to bring Dominic Barter back onto the Board for purposes of participating in any decisions the Board might make that would significantly impact the New Future Process.
I struggle to find evidence of the Board honoring any of these governance agreements.
Thus, I interpret the current CNVC Board as operating in a manner inconsistent with the legal Duty of Obedience of Board members.
FAILURE TO HONOR THE TERMS OF DONATIONS
Through a different lens, some people might argue that participants in the New Future Process were “donating” their labor to CNVC. However, if so, these were donations with terms attached. Failure to honor the terms of donations is a very serious matter for a nonprofit. It can result in loss of the organization’s tax-exempt legal status.
(I don’t know if this risk applies, in practice, to non-financial donations. However, I would hope that the principle would be honored, regardless.)
I feel quite certain that current Board members do not see things the way that I do. (Though, as a former CNVC Board member who was on the Board when the contract was enacted, and who appointed the first of the current Board members, I would hope that my perspective might carry some weight.)
I would guess that the current Board members did not think about their choices from the perspective of there being a potentially enforceable legal contract, and have not considered their choices in light of the Board members’ Duty of Obedience.
If Board members have not considered these issues, then that makes the Board members’ choices legally understandable.
However, if this is the case, it does not make the perspective I offer here wrong, nor does it make the Board’s actions legal. It’s a well-established principle that ignorance of the law (or not thinking about it) does not excuse one from the obligation to honor the law.
LEGAL VS. NVC PERSPECTIVES
I am not eager to engage this situation from a purely legalistic perspective. I see humanity as evolving through multiple stages, which I see as increasingly life-serving:
- “Might makes right”
- The Rule of Law
- Care for everyone’s needs, and Restorative Justice
I see it as part of CNVC’s mission to advocate for and exemplify, #3, which I believe reflects the type of “use of power” implicit in NVC. Applying this NVC-based approach, in a context of genuine partnership, would be my preference. However, I see no indications that #3, “Care for everyone’s needs, and Restorative Justice” is on the menu of what the CNVC Board is currently willing and able to offer.
I don’t want us to revert to #1, “Might makes right.”
I believe that the legal principles I’m bringing attention to are designed to care for values that are important to our collective social well-being. Even if approach #3 were available, it would be important to me for the needs underlying my legal analysis to be taken into account.
While it’s possible to do even better, I see #2, “The Rule of Law,” as the least we should expect of our organizations and our leaders.
WHAT I WOULD LIKE
To those participating in the discussions between CNVC and Certified Trainers:
- I request that you take these legal considerations (and associated needs) into account, as you consider what it might make sense for CNVC to do.
To the leadership of CNVC:
- I request that you consider how CNVC could care for the legal concerns I have raised, and that you engage in a publicly observable dialog process, involving those on the “other side” of the contract, to collectively and collaboratively determine how best to move forward.
To other readers:
- I request that you consider how you might increase the likelihood of legal concerns (and other related concerns) being addressed in a way that serves life.
I also welcome hearing about any ways in which this message contributed to you.
Santa Cruz, CA (at present)