One With The Law Is A Majority

By David

I am concerned. I have no doubt that the Coalition of Regions wants the best for swimming in this country. It wants to see a change in the management of the business. It wants a diversified approach to the coaching of elite athletes. It does not want the socialism proposed by Project Vanguard or whatever its new name might be.

We have seen Swimming New Zealand and SPARC portray these legitimately held views as “smears”, as “chaos” and as a “battle”. SPARC and the Swimming New Zealand’s Board have declared war on the membership of the sport of swimming. They will use their financial power and political muscle to beat the sport into submission. The CEO of SPARC, Peter Miskimmin, has long and loudly proclaimed the independence of swimming to arrange its own management affairs. But he does not mean that. If it looks like the Regions are about to replace his mates, he will use taxpayer’s money to save their skins. He will lie of course and tell the world he is acting to prevent the sport descending into chaos.

But for the Swimming New Zealand Board and SPARC this is not about right and wrong. This is not about winning a swimming race. Most of the Swimming New Zealand Board has no idea what is involved in elite sport. This is about power and that’s a game Kerry McDonald and his minions have been playing for fifty years. Winning the Board Room is the only winning that matters to them. So how are they going to do this? With the majority of Swimming New Zealand’s membership firmly stacked against them, how are they going to save their disgusting hides? That is a question that has exercised my mind for the past week.

My guess is they will do what all Board Room bullies do. They will use threats. They will use money and they will use the law to kill off the legitimate changes wanted by the Coalition of Regions. The threat will always be the same. They will threaten to withdraw SPARC funding of the sport. That will scare many. It shouldn’t. All SPARC’s money is spent on the Wellington office and Jan Cameron’s barren folly in Auckland. The vast majority of swimming would not be affected by Miskimmin spending his dole money somewhere else. As Swimwatch have said before, swimming would be poor but would have its pride and independence intact; qualities that have won New Zealand more Gold Medals that SPARC’s money ever has.

The use of money and the law is an inseparable union. My guess is that legal counsel will be employed to challenge every move made by the Coalition of Regions at the Annual Meeting on 25th September. I’m picking special emphasis will be placed on the Coalition’s voting power. SPARC and the Swimming New Zealand Board will get some Judas Iscariot Region, like Wellington, to challenge everything. Were the remits properly submitted? Were the Region’s delegates properly appointed? Are the Coalition’s proxies correctly prepared? Is the number of members claimed by each coalition Region valid? Nothing will go unchecked.

I am especially concerned about the challenge to the number of members in each Region. Why? Because, in the same position as SPARC and the Swimming New Zealand Board, that is where I would concentrate my attention. I would make every effort to castrate the Coalition’s voting power.

My guess is the axis of power will contest the membership numbers, especially of Auckland, to rip the heart out of the Coalition of Region’s voting power. How will they do this is the question? They can’t dispute the fees paid by the members. Presumably they are paid properly. Then I wondered if there was any clerical process they could question. And this is what I think they will do. I think they will pick on some small clerical process required by the Constitution and will attempt to disenfranchise every swimmer who has not complied; or whose Club or Region has not met the letter of the Constitution.

For example the Constitution requires that Clubs and Regions submit membership forms each year in addition to the fees and contact details. For years this has never been done. The fees and contact details have been submitted of course but most Clubs, including ours, don’t ask members to fill out a new form every year. Will Butler, Byrne and Miskimmin challenge Auckland’s membership numbers? You bet they will. You bet they will use our money to screw a thousand Auckland swimmers out of their right to be members of this sport. They will do this to win what they call their “battle”.

Well, I have decided not to let them off without a fight. I have been to a benefactor who has helped me with swimming expenses before. We have put $60,000 into an account to pay for legal expenses. Next week I will make the first payment from the account. It will pay for a swimmer who has been a member of swimming New Zealand for seven years but who does not have a registration form in the Wellington office to ask the High Court to rule on the validity of her membership. Swimming New Zealand will be issued with the papers requesting High Court clarification next week. I wonder if they will oppose the action. They shouldn’t. Isn’t it a good thing to go into the AGM with a clear idea of who is a member and who is not? Our legal case will accomplish that objective and avoid the unpleasant spectacle of SPARC and the SNZ Board challenging the legitimacy of thousands of its members. The request of one swimmer will bring clarity for everyone.

I expect this week’s action will cost us about $10,000. The balance of $50,000 we will spend defending the right of the Coalition of Regions to represent their members. SPARC have a lot more money than that. Eventually they will spend more and they will win. In the process, though, our spending will be sufficient to prove them frauds and losers.

  • I really appreciate your point of view. You could wel be right. I cannot promise to withdraw the action but I will certainly bring your comment to the attention of our lawyer. We are meeting him next on monday morning

  • James T

    Yes, I have heard some pretty disturbing rumours that because they are not getting their way they have decided to use our money (yes that is right, our money) to take out legal action against the regions and clubs (yes that is right, against us).

    These people are out of control.

    And yet another nonsense letter from a puppet club. They are really scrapping the barrel now:

    Steve Ross, you are doing yourself and your people no favours at all. You are a nice enough sort of person, but everyone knows that this letter was not written by you. Sorry to be so blunt, but there is no way you were the author of that letter. You are allowing yourself, your club, your coach to be manipulated by the likes of Ross Butler, Kerry McDonald & co, and now they are writing letters for you. And frankly, if you are now purporting that in fact you are no longer a region and not operating as a region, then you should not have a vote at the AGM and you have no part to play.

  • Northern Swimmer


    I agree with A Step Too Far that you could be opening a can of worms here. I have tried to work out the possible options below.

    Proceed with your action:

    i) Judgment is reserved to a later date. With only a week until the AGM this seems the most likely outcome – High Level justice moves at glacial speed.
    Effect: the AGM will be told that your action casts a shadow of doubt over the voting powers of each region, this will be spun undermine the legitimacy of the Regional Coalition’s increased voting power and thus their quest for change.

    ii) A successful judgment (either interim or full). Your swimmer is deemed to be a member of SNZ. On the facts this appears the likely outcome, as most likely your swimmer has competed at a national competition in that time, her membership has been used in regional vote allocation in previous years, and SNZ has accepted her membership fees.
    Effect: The voting powers for the AGM would stay as they are currently stated. To counter-act this SNZ would appeal this finding, most likely lodging their appeal on Friday afternoon, and would present this to the AGM as an uncertain position, as they would with a reserved judgment.

    iii) An unsuccessful judgment. From your discussion of the Constitutional requirements above this seems the most purely legal decision.
    Effect: SNZ would go through the membership with a fine-tooth comb. Membership would be decimated overnight. Potentially some Regions could be judged to have zero members. It would be presented as further evidence of the need for professionalisation of the sport -‘the regions can’t even submit correct information on their members, Project Vanguard is our only chance of salvation’.

    Withdraw your action:

    Would be very similar to you being unsuccessful.
    Effect: I think it could be the same as above, but it may be presented as taking longer than a week to complete (despite my belief it could be done within a day), thus casting doubts over the voting power of each of the regions.

    However, if you were to be unsuccessful, or withdraw your action I can see some unintended and undesired consequences for SNZ:

    – The largest change in membership numbers is attributable to (Kings Swim Club in) Auckland. This means that they have added the largest number of members this year, which must mean that the paperwork for these members is up to date. A reconfiguration of the membership numbers based on those with current paperwork at SNZ could potentially see Auckland with an even greater share of the membership, but they would still be limited to a maximum of 25% of the vote.

    – Membership fees would have to be repaid. Please forgive my very crude calculations below:
    For 2010-2011 there are 6161 competitive swimmers registered.
    For 2009-2010 there were 6510 competitive swimmers registered. (This change in itself is damning on our sport)
    If you consider the true fluctuations in numbers (those signing up, those retiring) and those members of more than 1 year who have up-to-date membership on file I speculatively estimate this would be no more than 25% of all competitors, meaning 75% are not legally members.
    6161 members x 75% x $46 fee p.a. = $212,554.50
    SNZ would have to repay this amount for this year alone (assuming my calculations are accurate, there could be many a regional administrator out there who has kept their paperwork up to date, reducing this amount.)
    This would put a significant dent in the “$400,000 in accumulated funds” which the Board proclaims as its first success in their 2 September letter
    This would likely be the subject of further legal battles – were people members last year if they did not have up to date paperwork with SNZ? If not, has your swimmer not been a member of SNZ for the past 6 years, despite having paid fees? Would she be refunded 6 years worth of fees? Having to pay back many years of incorrectly received fees would very quickly return the financial position to deficit.

    -The high profile swimmers – Boyle, Snyders, Ingram, Kean – have been SNZ members for many years. Most likely they also do not complete the paperwork required each year. It could make for a farcical media story to read that they were not correctly registered members of SNZ, and thus not eligible to represent New Zealand at World Championships and Commonwealth Games. (If Ashley Delaney appealed could Gareth be required to return last year’s silver medal?!)

    As the fortune cookie predicts “may you live in interesting times”

  • James T

    Northern Swimmer – farcical indeed.

    Bearing in mind that the cut off date for membership numbers for voting purposes is 30 June each year, how many of the current Aquablacks had signed membership forms by this date? And if they are national record holders, how many of those records would need to be invalidated because the current record holders might in fact not have been SNZ members?

    How many of the team to Beijing might not have had signed membership forms? Will SNZ then need to notify the NZOC who in turn will need to notify the IOC that ineligible swimmers participated with results being removed from the records? And subsequent World Champs results? Would they also be invalidated and removed from the records because participating swimmers were not members of SNZ, and therefore not members of FINA? May be FINA will need to suspend SNZ for not having their sh**t together.

    How many Commonwealth Games medals would need to be returned? Would Emily Thomas’ Pan Pacs medal need to be returned?

    How many of the current SNZ Board have supplied signed membership forms to their clubs for submission to SNZ? Maybe that raises the question of invalidation of all SNZ Board decisions.

    What about members of regional boards? If they were not members of SNZ does that potentially invalidate all decisions made by those Boards? And club committee members? Does that mean that they have been acting unconstitutionally in making club decisions? And regional delegates at AGMs over the past 4 or 5 years since the form was introduced? Does that invalidate potentially all business transacted in the SNZ AGMs for that period?

    How many SNZ officials are current members of SNZ and have signed membership forms residing in the bowels of Pelorus House. What about those SNZ officials who are FINA appointed officials? Have they also signed SNZ membership forms? Does that mean that the accreditation of all swim meets where these officials participated would need to be retrospectively withdrawn?

    Wouldn’t that play out well in the media?

    Something about stones and glasshouses comes to mind. Sounds to me like SNZ might be well advised to stay away from this legal route.

    And why might this happen? Because someone in SNZ might not like the idea of democracy.

  • NSS Parent

    I have never signed a form. We were told awhile back that the Head Coach then, Ian Turner, opposed signing these forms over one of the clauses in it, and that NSS were not going to submit any. Apparently he said then “What are they going to do? Stop NSS swimming? I don’t think so”.

    So perhaps they will need to return all our fees for all national events over the last, how ever long. That would be a sizeable amount I would think.

  • swimfan

    Two points re the membership and the form/ databse
    One: you can join SNZ online…………. no need for any paperwork
    Two: When they set up the Zeus database SNZ put members in…………. no forms needed

  • Chris

    Hi David, a few thoughts re. SNZ’s plans – yes, I also have been told that they have definitely entered a litigious phase. I am led to believe that they will use ANY device possible to ensure that the proposed remits at the AGM are not passed. That means, as James T above has expressed, using our money to fight us!

    Let me tell you what I reckon is happening in Wellington. Remember awhile back I said that Ross Butler couldn’t count. In his foolish letter post-Coulter’s resignation, he was regurgitating the suggestion that Auckland had 11 of 47 votes (and attempting to go several steps further by accusing them of fraud). This of course was before their official publication of the membership numbers which they have to do constitutionally a few weeks prior to the AGM. Why were things relatively quiet on the membership front before then, other than calling “foul” (at least publicly anyway)? Because they thought that with Auckland on 11 of 47, the total voting power of the coalition regions, according to my calculations, was only 59%, and therefore not enough.

    Well it seems that only last week apparently, after the membership numbers were published, there was a letter sent to the regions correcting the voting numbers, and giving Auckland 12 of 48 votes. Interesting, that within days, rumours of SNZ mounting nasty legal action starting flying around. Why? I think that our friends up in Auckland (who seem to be running circles around them at the moment) challenged them on the numbers once they were officially posted, and they were forced to back down, because as I said, ROSS BUTLER CAN’T COUNT and we know that he, Byrne and MacDonald definitely CAN’T READ A CONSTITUTION (re. their Summary of the Remits). And of course, the coalition DO have more than 60% of the vote, which means they can get through their remits at the AGM.

    And also, interestingly enough, it seems that some of the regions that are not part of the so-called “coalition” are considering the remits on their own merits and will be voting in favour of some, if not all, of these – and so they should.

  • Swim Geek

    I was wondering when we would get to the SNZ Zeus Data-base! Herein is the source of many problems. This has been a really bad project. Badly designed and badly implemented. That is what got 15 regions all wound up and working together last year. It has caused a lot of trouble and has been a complete waste of money and time. So much so that I have never really known exactly where to begin but this discussion about membership numbers has just done it for me.

    First point – SNZ did not need the Zeus database to run the business of swimming. They wanted it to take control away from the regions and in so doing they created an ugly monster that has made the life of everybody dealing with membership more difficult. Now I don’t just mean more difficult, I mean really really more difficult.

    Second Point. This system does not even meet basic ‘industry standard’ criteria. It does not have audit trails, it does not link documentation to electronic records, it serves no purpose in terms of running day to day sport functions which are performed by a perfectly adequate industry standard alternate which is still, after three years of Zeus, needed to be run in parallel and will continue to be used for all of the forseeable future to run the sport in New Zealand, regardless of what SNZ decide to do to replace the now discredited and failed Zeus. The debacle unfolding here has been a train wreck waiting to happen from the beginning and may well spell the final end of this much hated system.

    A couple of simple facts. Most clubs keep their membership records on Team Manager. It is simple and it integrates seamlessly into Meet Manager. Clubs and regions have got very very good at utilizing many features and adapting them to cover diverse needs. In six years I have never heard anybody outside of SNZ suggest it needs to be replaced and each new release from Hy-tek brings a new feature which we can utilise. Did clubs and regions need a new database? No. So why did we get Zeus? Because it is required for the Orwellian centralism project which suited the Byrne, Butler, Berge and Coulter dream to come to its fruition. You see that is not about efficiency, it is about control.

    Why have I sprung into life on this topic? Because it sounds like SNZ are now going to try and use this very flawed system to avoid their democratic obligations and it stinks. Lets examine the facts.

    1. When Zeus was introduced as Swimfan notes above SNZ did the data entry but no forms were required. In fact as anybody who has dealt with Zeus knows there is no check point in it to link back to SNZ or for that matter any other document or form. Also as Swimfan notes they have an on-line membership capacity which like entry by clubs or regions into Zeus requires no form at all. In 2009 a constitutional obligation was introduced for the region to supply the form. This was completely unenforceable as the region does not deal with the individual member and SNZ couldn’t even tell the region who they already held forms for! That obligation was removed in 2010 when the regions got fed up and voted on a remit requiring the regions to supply membership data in a form which allows SNZ to meet its statutory obligations only. The region does that by maintaining the Zeus database, or by sending a Team Manager zip file or Excel file to SNZ who can then load Zeus to their heart’s content, at 1-min per individual record, because it has no batch processing capability.

    2. Byrne, Butler and co will not understand this but the SNZ form is irrelevant to Zeus because the data for entry into Zeus does not come from the SNZ form, it comes from (in most cases) Team Manager. Always the emphasis has been reinforced that membership numbers are taken from numbers in the Zeus database. Membership returns/reports are reconciled against numbers in the Zeus database and cross-checked by regions preparing the returns back to their own Team Manager records. At no stage does the process involve a SNZ membership form. In fact, the truth is, the region does not even need in most cases to see a membership form as when it is sent to SNZ it is done by the club directly to SNZ.

    3. There is no capacity in Zeus to create a report which tells whether or not a ‘member’ has a form. One imagines that SNZ maintains a set of paper files arranged presumably either by club or region alphabetically of membership forms that have been sent in. What happens when transfers are entered either inter-club or inter-regional. Transfers are entered into Zeus, but who notifies SNZ? No-one. So how do they transfer a member’s form to keep track of it? Presumably they might get a report saying that a transfer has happened, and one of the their 35 staff will need to locate the form, and physically shift it into a different club file. Who knows what ridiculous mass of confusion ensues.

    So, SNZ sees democracy running against them and in a last desperate effort to cling to power they are going to try and take away the voting capacity, and using as their weapon the comedic claim that a member is not a member until they have a form. Forget the fact that they have taken money from every competitive member for years without checking forms. They have entered competitive members in national events without checking forms. Every week non-competitive members in the form of officials and administrators who do not pay fees officiate at pools, participate in club committee meetings, give their volunteer time to update the bloody useless Zeus database, and never a form is checked. Families transfer across clubs and regions and no forms follow them.

    And then when a majority of the members through their region say it is time to go, the form suddenly becomes important.

    Is this the best they can come up with? I would say, be careful what you wish for SNZ because Northern Swimmer and James T are both likely to be right.

  • Chris

    Hahaha. I didn’t know all that detail about the Zeus system other than friends moaning about it. In fact, I remember Tania Black and Byrne on several occasions going on about getting all our members into their database whether they were competitive swimmers or not because that would increase SNZ’s numbers which would look good for SPARC and SNZ’s sponsors.

    Clearly everyone’s members EXCEPT Auckland!!!

  • Chris

    So tell me again why this boy has never received any SPARC funding, and why he wasn’t allowed to swim the 10k at World Champs (to qualify for the Olympics) even though he was already there to swim the 5k?

    Oh that’s right. Because Cameron was in charge. And why presumably does he still not get any funding? Oh that’s right. Because now Butler and Byrne are in charge.

    And maybe it might also have something to do with the fact that his mother presently has the SNZ grey men on the run!

  • Northern Swimmer

    “if you win this race, you’re definitely a who’s who of open water swimming”

    So if you win it twice…

    Well done to Kane.

  • Wow, well done indeed. That’s very good company to be in as a winner of that race.

    That his own national administrators are playing politics with someone with talent like that is really depressing, especially given the discussion later in the Ustream video, seriously discussing Kane as a top-class open water athlete with Olympic-level longevity. They call him a serious contender for London, who should be kept on everyone’s radar.

    It would seem to me to take an athlete with lot of class and talent for American swimming commentators to say something like that.