Sausage Central
by Dan Empfield 12/2/03

Just about a year ago I wrote, Elections are like sausages, you don't want to see how they're made [click for the full text].

Our election this year went much like the last one, except I don't get the feeling any body part was excluded from the grinder. In went everything, toenails and all.

I therefore have the following to write, fully aware that it may have implications on certain people and firms. I've given everybody ample opportunity to explain themselves, so I don't feel a lot of anguish about what comes next. Further, there is a lot I'm omitting. If I was to divulge what's gone on in executive session in USAT board meetings, the overarching theme of fair and honest elections would be cast aside, as there are much sexier, lip-smacking stories I could write.

So, when it comes to transparency and the lack of it, maybe my self-censorship makes me the worst offender. As consolation I offer the election story below and hope you find it sufficiently juicy and, perhaps, even edifying.

In June of this past year the president of USAT's board, Valerie Ellsworth-Gattis, received a legal opinion about the process for holding the upcoming election. USAT's board sought the opinion. They asked it of David Backer, the most influential person in triathlon you never heard of. Among many other services rendered the federation, Backer is an attorney, is co-chair of USAT's legal committee, and is the chief architect of USAT's bylaws. In June Backer wrote back to USAT's board, in part...

"I urge the Board to resolve that only USAT may distribute ballots. Restricting distribution to USAT will ensure that no ballots are distributed without complete candidate profiles accompanying the ballots and will avoid other concerns inherent in having candidates distribute ballots or present them to members for signature...

"Inserting a campaign flyer in a race bag is vastly different from putting a ballot in a race bag. If USAT permits candidates to distribute ballots, the creative opportunities for abuse will abound. Preserving the integrity of the election requires that USAT protect the method of dissemination of ballots...

"I also urge the Board to prohibit any candidate, or any person acting on a candidate's behalf, from collecting ballots from members and forwarding the ballots to Ken Waugh for counting. No candidate should ever have possession of another member's signed ballot. The practice invites the opportunity for fraud and calls into question the integrity of the entire election process. The temptation for a candidate to choose not to mail a ballot that doesn't meet the candidate's approval is simply too great to ignore."

I might write in passing that several of USAT's board members were given the opportunity to forward me this legal opinion, and all declined, even though David Backer himself said to me, "I don't care if you see it, I don't care if the world sees it." This begs the question, why were these board members reticent to forward me a copy? Perhaps it was out of embarrassment, given how the election was really conducted.

This legal opinion was received and retransmitted to those USAT board members not running for election, and they were asked to render a vote, which boiled down to: "Take Backer's advice," or "Discard Backer's advice." Backer's legal opinion was emailed out on Friday, at 9:30AM. A response was due back by 6PM that same day. A non-response was not to be treated as an abstained vote, but a vote for discarding Backer's advice in favor of a process desired by certain of those running, mainly incumbents. I'll list the high points of this election process further below (or perhaps "low points" is the better term).

But about the legal opinion: One must inquire (I did) as to why the short response time on considering Backer's legal opinion. The answer I was given was, "We were under a severe press deadline by [USAT staffer] Tim Yount." What deadline could possibly be so severe? Aren't the rules behind how the election is held more important than annual members getting a Triathlon Times newsletter three days later? "Perhaps," I thought, "ballots included in this issue of Triathlon Times must—by decree in the bylaws—be mailed by a certain time." But I checked the bylaws, and ballots must be presented by the first of October. This legal decision was handed down on June 18th. And finally, why is a staff member dictating to the board president on an issue as important as this?

Who cares about all this? What does it matter how the election is run? Good question. In fact, one sitting board member put it to me this way: "Nobody cares about the election. Nobody bothers to vote. So why shouldn't we run the election in whatever way we want?" When I asked this board member about David Backer's legal treatise, the answer was, "Hey, that's just one guy's opinion."

As the summer unfolded, it was clear that a majority of the board looked at Backer's direction—that "one guy's opinion"—and proceeded in a fashion entirely opposite. To wit...

PDF ballots were available on USAT's website. The election rules adopted allowed for this PDF to be reproduced en masse. It was deemed permissable to deliver a platform speech on behalf of a candidate (at a race or club meeting), disseminate the photocopied ballot to club members, and then ask the members to vote—without availing them of any rebuttal speech given by another candidate. Filled-in ballots were then handed back, collection plate style, and the candidate—or his or her designate—was allowed to walk out of the room with a briefcase full of unsealed ballots.

As Backer himself warned, "The temptation for a candidate to choose not to mail a ballot that doesn't meet the candidate's approval is simply too great to ignore." It was ignored anyway.

This was the process at tri club meetings. At races. Big races. Voting has become practically part of registration process: Get your race number, pick up your chip, vote for me, proceed to the t-shirt line. One person complained that he felt he'd not be allowed to get his bike out of the transition area post-race unless he voted and handed the ballot to the RD—who was the candidate.

Those running for office traditionally assume that the election commences when platform positions were received in your mailbox and mine, in every annual member's Triathlon Times. That is where ballots are also enclosed. But, "incumbent candidates also collected votes before the slate and platforms have been published to the membership," alleges Mike Greer, a loser to Valerie Ellsworth-Gattis in the At-Large race. Indeed, it appears certain enterprising candidates may have printed out the PDF ballot, ran to Kinkos and followed the procedure outlined paragraphs above—and gotten signed ballots before the election had officially started.

The "overseer" of this process is Waugh and Associates. Those who read my OpEd on last year's election process will recognize the firm. Ken Waugh refused to talk to me last year. And this year. This remains the case even though our federation's executive director, Steve Locke, told me he has asked Mr. Waugh to talk with me.

I'm less interested in flaying Ken Waugh with a literary scimitar than in finding a way to go forward and have cleaner, fairer elections in the future. Waugh deserves to know what sort of election is being certified in his name. Okay, yes, it is considered by some accountants to whom I spoke mildly troubling to handle both financial accountancy and, for the same organization, certify or otherwise participate in establishing the bona fides of an election. Why? A slate of new directors might represent a new direction, up to and including the replacement of the accounting firm. So, perhaps it might be a good idea for Waugh to suggest the farming out of the election attestation service to another professional firm.

But more importantly, if I'm Ken Waugh I'm troubled by what is written several paragraphs above. It's troubling that USAT's legal chair wrote the legal opinion he did. Ken Waugh can't be comfortable being part of an election verification process held under such conditions. Did Waugh ever inquire about how the election was to be held? Did he ever see Backer's legal opinion? Personally, if I was on the board I'd expect the same due diligence in attesting to an election result that would be required for attesting to financial numbers. And I'd tell Waugh that. And then Waugh would inquire as to the way the election was held, and he'd have his own say in the process. And then we no-doubt have a cleaner election.

I'll make a wager. I'll bet USAT's accountant and election overseer (Waugh) never saw what USAT's attorney (Backer) wrote. The Board already had its lawyer offering a chilling assessment of its proposed election process. I can't imagine it wanted its election certifier on its back as well. But if the voting process was changed, certain candidates might lose their competitive edge. Maybe it was deemed better to keep Waugh on a need-to-know basis and maybe, in this case, Waugh didn't (perhaps one day all parties will talk to me and we'll find out).

Why should you care about this? Money, for one thing. Four of the losing candidates (perhaps rightly) feel the election was conducted unfairly, and they've protested the result. If the protest doesn't work, they'll sue in California court. And conceivably win. And the federation, instead of hiring another staff person or training more officials, will spend this money defending itself in court and then holding another election.

Who's to blame? Obviously I wish the Board would have exercised wisdom and prudence and heeded Backer's sage and transparently logical advice. But I'm less interested in that than about going forward. I don't care if we hold this election all over again. My concern is for future elections, whether they're held next month or next year. They ought to be held properly. Our federation is considered quite wealthy and well-run by the rest of the Olympic governance organizations in Colorado Springs. It's a model. We ought not to sully our reputation by holding elections under rules better suited for Libya or Iran.

My request is very simple. Let's refine the bylaws, so that they state clearly what they've previously stated vaguely: Nobody should ever handle more than the single ballot used to cast his or her own vote. Let me say it again. If you are a candidate and you hold one ballot in your hand, fine. If you hold two ballots in your hand, you are disqualified from both the current election and all future elections.

I didn't use to the think the process was important. I thought that those who were willing to be intrepid campaigners, and who showed initiative in getting elected, ought to be elected because they wanted it more. I admired campaigners like Western Region representative Jim Girand, who were willing to take the election by the scruff of the neck and make it theirs. I don't blame Girand for doing it. But now I don't feel that way. Maybe it was an era and now that era's past. Maybe I've been watching too much West Wing. I don't know. Now I think the process is paramount. I hope I'm not in the minority.