A Deliberate Lie is Evidence of Guilt

By David

I am sitting at my computer in awe. What the hell is going on? Can any of this possibly be true? Swimwatch may have a reputation for trouble making. But what should happen when there is evidence of blatant dishonesty? Should we all just ignore the shortcomings of our leaders? Because someone is called a CEO or a Chairman or a coalition leader, are they above reproach; or beyond question.

Clearly we don’t think so. When those who lead us behave badly they should be held to account no matter what the cost. For years the membership of Swimming New Zealand ignored gross bad behaviour by the leaders of the sport. Is the current shambles in swimming the result of those who behaved badly or the fault of those who failed to call the guilty to account? Both are responsible. Those who ignore bad behaviour are just as culpable as those who take part in dishonest acts.

For this reason I am not going to ignore a Sunday Star Times report. The article by Simon Plumb concludes with the following explanation.

In an email to the Sunday Star Times on Friday, Byrne acknowledged the situation was “ambiguous”. “We think that this clause of our constitution is a bit ambiguous and can be interpreted multiple ways,” Byrne wrote. “We have determined that the interpretation that we will apply is that our appointed directors may be elected for multiple terms of two years. Our regions have agreed they will not challenge this interpretation.”

There are two things that are desperately important to the future of the sport in Byrne’s email. First, there is no ambiguity in the wording of Clause 10 of the Swimming New Zealand Constitution. It cannot be interpreted in “multiple ways”. This is what Clause 10 says. “The board shall comprise of: (a) Six elected Directors. (b) The elected Directors may appoint up to two appointed Directors on the basis of specific knowledge or skills, for a term no longer than two years. Upon expiry of that term the Board if it thinks fit may reappoint such Directors for a further term.”

Mike Byrne knows that the framers of the Constitution wrote this clause specifically to avoid the long term appointment of an unelected Director. The wording is clear. It says “upon expiry of that term” – that’s the first term only – then the Board can appoint the Director for a further term. There is nothing ambiguous about that. The clause is clearly there to limit unelected Directors to a two term period. Byrne’s first responsibility is to protect the interests of Swimming New Zealand’s membership by upholding the terms of the Constitution. His email demonstrates he has little interest in either responsibility. But, I guess we all knew that months ago.

However, worse than all that is the last sentence in his email; the one that says, “Our regions have agreed they will not challenge this interpretation.” My first thought when I read that sentence was that Byrne had just told us another bald faced lie. There is no way the regions would agree to set aside the Constitution in order to curry favour with Ross Butler. That would have required the approval of an Annual General Meeting. I even went back through all the AGM minutes looking for a remit that approved the never ending renewal of an appointed Director’s term in office. Of course I did not find anything.

Clearly, I thought, this was all another Swimming New Zealand lie. Byrne has just made it up to convince the Sunday Star Times that the Regions approved Butler’s reappointment. But somehow I was finding it hard to convince myself that even Mike Byrne would lie to a national newspaper in writing. That was a stretch even for the likes of Mike Byrne. Was there another explanation?

And then it dawned on me. The Coalition of Regions had gone down to Wellington to do a deal with Butler and SPARC. As part of that deal Butler and SPARC had got the Coalition of Regions to agree to roll over the appointment of Ross Butler for yet another term. It was the only way to explain Mike Byrne’s email. The people we sent to Wellington to represent us had agreed to set aside our Constitution in order to give Butler two more years in power. We had been deceived.

Swanson and Radford are no better than the charlatans that have led the sport of swimming for the past ten years. They did not have our permission to set aside the Constitution. They have sold every swimmer in this nation short. Their own son and daughter deserve better. Swanson and Radford have forfeited the right to lead. Some things are not negotiable. Some things cannot be agree to. One of those things is the inviolability of the Constitution; the sanctity of the rule of law. Swanson and Radford appear to have done a deal that shines a light into their souls. If they did this deal; it is corrupt. They are corrupt. Good things will never accrue from dishonesty. The ends do not justify the means.

When it suits Swanson and Radford what or who else will they sell short. How many pieces of silver will it take to swing the next deal? What is the next expediency they will call on to justify their corrupt deals? Desperately, sadly those we trusted to act with integrity have betrayed that trust. Tomorrow morning I have to go to a pool and instruct a dozen good people to swim 10,000 meters. They will do it because they trust me and they trust those responsible for this sport to handle their affairs honestly and reliably. That motive is at the heart of the Swimwatch campagne to reform the management of Swimming New Zealand. If Swanson and Radford did the deal I think they have done, they are no better than the crew we asked them to replace. Bad deals are done by bad people.

 

  • Northern Swimmer

    Mr Byrne’s Interpretation
    The interpretation of the first sentence is strained, but could be argued to be correct – that independent directors can be appointed for terms not exceeding two years.
    However when that is read with the next sentence, so as to complete the clause, “Upon expiry of that term the Board if it thinks fit may reappoint such Directors for a further term”, it is clear that the Constitution intends that independent directors be only able to serve two terms total. Mr Byrne’s clarification on the first part therefore tells us that independent directors can only serve a total of four years.
    (If i were trying to abuse the Constitutional rules I personally would have said that “further” was the ambiguous word – that it could be taken to mean consecutive and thus independent board members could do bursts of four years, have a break, do another four years, have a break, do another four years…

    The “Regions’ Agreement”
    (I personally think we should only accept comments from the Regions as to their true thoughts on issues, not hearsay evidence from other parties with vested interests)
    The regions may well “have agreed they will not challenge this interpretation”. But what this could mean is that the regions have agreed that a term cannot exceed two years. They could say that they accept this, and still argue the plain meaning of “a further term” means just that – Four years maximum whether consecutive or with a break between terms.

    My questions for you all:
    Does this contravene the 3 party agreement between the Coalition, the Board, and SPARC? (While not legally part of the Board, Mr Byrne does attend the Board meetings)
    If so, should we report this breach to Mr Butler? (If we do, what could he actually do about it? And would he actually do anything about it?)

    Believing the best of Mrs Radford and Mr Swanson, if they have accepted that such an interpretation is feasible, and will allow Mr Butler to continue his reign supreme, what concessions have that extracted from the Board for such a deal?

  • Stevie

    David, a few follow up ponts relating to this story.
    1. swimwatch has done a good job trying to keep SNZ honest and encouraging better sports management in swimming. In the face of ongoing bullshit in SNZ (and SPARC)you will just have to keep going.
    2. you are correct – there is no ambiguity in the constitution in connection with the maximum tenure of directors who are not elected by the membership but chosen by the board itself. Any assurance given by regions that they would not contest an unconstitutional re-appointment of Ross Butler is not legally binding on the membeship. Any member of an incorporated society has standing to obtain a court declaration that the composition of the society’s board is incorrect and ask the court to order (Butler’s) removal. Costs would normally be awarded against the society should they defend the application in such a clear cut situation as this. However, you would expect that there will be a move by those holding power in SNZ to try to ratify at the agm or a special general meeting, the defective board resolution that has been made to try to have Butler continue on (and thereby take the president role) or they may initiate a motion to amend the constitution itself.
    3. regradless of the future moves, the fact remains, as i think you first pointed out to the readership, Butler has remained there without any legitimate authority to do so because he exeeded the term for board-appointed directors. I have attacked Butler’s performance in detail before on swimwatch so i wont repeat my views of his key role in matters that led to the Ineson report.
    4. i had thought that Jane Wrightson would quietly move on from the SNZ board so as to minimise the fact that her “corporate” reputation has been tarnished through being on the SNZ board. But I understand she has been part of the move to retain Butler despite his Use By Date. Jane Wrightson slept soundly while the grassroots organisation was on fire. Wrightson was known to say that Jan Cameron was great… and great for the sport. No clue. She is currently CEO of NZ On Air. Previously on the board of Netball NZ. Previously chief censor in NZ. She is on recod as having said that her “strong will” has been a blessing and a curse to her. When Censor she said “strength is needed as a film censor – there are so many individuals and groups pulling in so many different directions that after absorbing all the approaches one simply has to go with instincts, consultation and a healthy dollop of common sense.” That was in 1992. A great pity that she has been so ineffectual in a governance role in SNZ (since 2007). Should have gone after the Ineson report, just as Butler should.
    5. swimwatch was far too quick – and far too enthusiastic – in its support of Radford. But you were desperate in those days, before the public announcement of Cameron’s departure. Radford means well, obviously. That she appears to have been a participant in a blatant disregard of the Constitution is sad. However, she has probably received an assurance that Ross Butler’s little problem with getting hold of the SNZ presidency is a technicality that they can all sort out (after all, we shouldn’t let an ambiguity bog us all down, should we!). What is sader is that Radford and others have endorsed Butler’s attempt to grab power following Coulter’s resignation.
    6. for very many years now the best swimmers among the elite group have been on their own in terms of what support they have had, the culture in their training environment and the poor quality of the SNZ infrastructure that is there. With all due respect to the faith you placed in Radford etc, that was not going to change quickly. One thing that tends to differentiate the NZ international swimmers from their main competition is that the kiwis do it “on their own” pretty much, while in other countries the swimmers are resourced with high quality support people and systems. So the news from the top – the subject matter of your story – shows that nothing material will change in the sport in the short or medium term and consequently the swimmers have to do it on their own – do the miles; be supported by people such as yourself; and hope like hell that one day quality people get into power in NZ swimming.

  • A step to far

    In my last post, I suggested you would have an angst-ridden time until the AGM. I couldn’t have written a truer word.

    I think you would probably be on a losing horse if you tried to take action to overturn the reappointment of Butler. The Board can probably twist the words of theConstitution to make the reappointment valid I.e. Butler was currently appointed for a term less of up to 2 years – meets (a); so then they can reappointment him for a further term to that (the current ) term. (b). And keep on reappointing him on the same logic. He must truly be a superhero.

    You now have to hope that the original remits to the AGM have not been withdrawn by the proposers and that the regions are still of a mind to pass them. Inter alia, they would limit the cumulative term of any appointed Director and also prevent any appointed director becoming the Chairman. Together they would achieve most of your wish. You should note that Butlers reappointment is subject to confirmation at the first Board meeting after the AGM – but since 6 of teh Board will be unchanged by teh AGM, it would take at least 2 of teh current crop to change their mind to get a change.

    The SNZ website says that the papers for the postponed (and I would say ultra vires) AGM would be posted on the website as soon as they were available. Either they have forgotten to post them or they are not yet avalable – if the latter they are leaving things late as the meeting is now only 10 days away.

    It will be interesting to see what remits have survived the postponement. Half of me thinks that most if not all of them will actually have been withdrawn on the grounds that a full review of the Constitution is an integral part of the review about to be announced. The other half of me wonders how many pieces of silver would have had to have changed hands to douse the fire that I thought had been emitting from the flared nostrils of the Regional dragon.

    Only time will tell

  • James T

    Several things here:

    As I mentioned in my comments to your last post, they have indeed had their dodgy lawyer (what is he, some smart-ass, bucket shop, sole practitioner calling himself the ‘Approachable Lawyer’) convince them that “a further term” means “multiple terms”. But you can bet that Mike Byrne did not send that email to that reporter before getting advice. I would even suggest that he did not write that email himself. The phraseology and definitive nature of the statement, as in “We have determined that the interpretation that we will apply …” points to the careful choice of words to ensure that the Board’s “interpretation” is final. No, Mike Byrne on the one hand is too stupid to have written this email himself, but obviously stupid enough to have sent an email to a reporter in the first place.

    Only a lawyer would look at that clause and in ‘straining at gnats’ suggest that it is ambiguous. To me, you David, and the whole of our community, we understand the sentiment of this clause very clearly. The phrase “for a term no longer than two years” clearly puts boundaries around this appointment that is quite separate from the other elected appointments, and I would suggest it in fact endeavours to reinforce a hierarchy in terms of Board appointments i.e. an elected appointment is for a term of three years as opposed to a ‘lesser’ non-elected appointment of only two years. What I think is clear is that this type of appointment was never intended to have greater weighting than an elected appointment. And certainly, as I mentioned before, “a” as in “a further term” is singular in its intent.

    I think we have all been slow on this one David. The issue of Ross Butler’s non-constitutional appointment over the last two years (and likely reappointment) was not picked up before and it has only been of late, since Coulter’s resignation and Butler’s succession as Chair, the Coalition’s campaign, and Swimwatch, that this has been highlighted.

  • Sensible Swimming

    Well, well, well. Very interesting times indeed. It does feel as though we have been going through the ‘lull before the storm’ and this little frenzy has woken everybody up. I normally read the Sunday papers on-line and so I missed this little gem as it does not seem to have been posted anywhere on-line. I had to ask around family to get hold of a copy of the Sunday Star Times today to read this article after I read your post this morning. Simon Plumb has been going out of his way to make a lot of new friends in the sporting establishment recently! Between his work on the SPARC supplements issue and now SNZ I am not sure he will be sitting high on Peter Miskimmin’s, Ross Butlers and Mike Byrnes Christmas card list this year. Good on him.

    David, you speak of the SNZ constitution in very reverential terms and yet this is the same document which provides no capacity to sanction or remove a non-performing director and provides virtually unlimited power to the CEO to function without constraint. As has become glaringly obvious through this whole period the board of SNZ feels quite impervious to criticism or sanction and hence their complete contempt for the membership of the sport. Any board member with any sense of integrity would have resigned for any one of a multitude of failings before we had got to this point. That they have not says all that needs to be said about their individual commitment to integrity and good practice. It also speaks volumes about the limitations and failings of the constitution which has placed them in and keeps them in office.

    You have now posted several times and apportioned blame to the regions for allowing the ‘non-constitutional’ appointment of Ross Butler for a third and soon to be a probable fourth term. I am sure that the people of the regions will accept their share of responsibility with good grace and notwithstanding your criticism will remain resolved to ensuring that a constructive outcome is derived from this whole sorry mess.

    Let me add a thought or two on the subject being debated relating to the ambiguity, or as you suggest the clarity of the SNZ constitution. I happen to read the clause which relates to reappointment of directors to the board as you do David, but I do so with this health warning – the only people who would relish taking this to court to get a definitive decision would be the lawyers and there most certainly will not be any guarantee of the court ruling favourably one way or the other. Many of us have learned over our lives that the law is often not effective in terms of generating solutions on these types of issue. It is often at very high cost that a legal case based on high principles of right being might can provide a win of the legal fight but a loss of the real war. What is not at question is that there will be any number of lawyers who would happily take money from either party to argue the case one way or the other and win or lose their fees will still need to be paid. I do not think that spending what could easily be tens of thousands of dollars on this subject in legal fees would be welcomed by all as a wise use of already limited resource in the sport.

    Having re-read the SNZ Constitution tonight (sad I know) there is in my opinion another factor which you have missed David and which I suspect that the regions had not missed. Rule 11.2 (d) says as follows relating to the power of the Board:

    “To interpret any SNZ rule or regulations or any definition contained therein and such decision shall be final.”

    This very simply means that you may well be right, but even if you are, the Board simply needs to interpret the clause as they have and under this constitution they are right because they say they are right, and there is nought you or any body else can do about it David! Even if you go to court and the court rules in your favour on a narrow interpretation of 10.1 (b) they will probably still determine that the board acted lawfully under 11.2 (d) and may or may not determine to over-rule the decision of the board.

    I do respect the importance you attach to being constitutional David, but this document is not a good constitution by any stretch of the imagination. It is not the Magna Carta or the Constitution of the United States which have been well drafted by wise men and women and tested in courts through the centuries. This constitution would fail most reasonable tests of quality and certainly does not provide the protection which you imply it does. This is when pragmatism must take over from strict legal interpretation. I am sensing that much to your frustration this is where the regional people are moving to try and secure a pragmatic, workable and long lasting solution.

    Another health warning. I would not believe a single word which emanates from from Mike Koru Byrnes mouth or in this case as cited by Simon Plumb from his keyboard. The man has a proven detached relationship with truth. In that regard I am with Northern Swimmer on the subject of needing to hear from the other side before drawing conclusions.

    Finally a word on the subject of mediation. I have been involved many times in mediation as I am sure you have been David as you were in the meat industry. There are some fundamental principles to the process of mediation which anyone who has been involved will understand very clearly and which are essential to making it an effective process. First, everything discussed in mediation is on an entirely ‘Without prejudice’ basis. Second, everything discussed in mediation is subject to strict confidentiality. Third, everything agreed in mediation will also be subject to strict terms of confidentiality and bound by strict legal agreement.

    What I wish to know is this.

    1. Ross Butler has said to Regional Chairs that the remits placed by Auckland, Bay of Plenty and Waikato have been removed. There has been no comment on that subject by any of those regions. Is the statement that Ross Butler has made correct and if so was he authorised and by whom to make that disclosure? If he was not authorised by those regions to make that statement and in making that disclosure, has he broken some of the terms of confidentiality surrounding a mediated agreement? The silence of the proposing regions on this subject would seem to imply he may have. 2. Mike Byrne refers to an agreement by all regions not to challenge the boards interpretation of 10.1 (b). No agreement of that nature has been published by any region, in the SNZ board minutes or elsewhere as far as I can tell. I can only assume it may, if it exists form a part of a mediation agreement which will be subject to confidentiality as noted above. If that is the case then I am guessing that Mike Byrne is now about to find himself in very deep trouble and probably Ross Butler with him. I once saw a similar situation in a previous mediation I was involved in and as a result of this type of disclosure the whole agreement failed and it got very ugly indeed. It would not surprise me if Mike Byrne will face serious employment issues if he has indeed broken a term of a mediation agreement. Ross Butlers ‘no comment’ response to Simon Plumb when asked would seem to imply that this area must indeed have been a part of a confidential agreement. If so there will be some very uncomfortable wriggling and I would suggest you will not be hearing too much from the regions involved by way of public statement but that Ross Butler and Mike Byrne will be hearing from their lawyers. Oh to be fly on their wall over the next few days!

    Finally to end my book tonight – I want to know why Helen Norfolk resigned from the HP Governance Committee. She cited concerns about process. I want to know why SNZ has made no acknowledgement of her resignation or indeed of Ross Butlers resignation. I want to know what process issues caused the best and worst people on that committee (Norfolk and Butler in that order) to resign. We are owed an explanation.

  • While it is true that the Constitution might not be all that good and Clause 10 has problems and AGM remits have or have not been withdrawn – this fight was never about all that. This fight was about the fundamental lack of integrity that was applied to the governance of swimming. With this in mind it was always my concern when I heard the Coalition of Regions was going to Wellington to negotiate and that their work would be in secret that instead of the CoR reforming swimming, swimming would corrupt the CoR. That is still my concern. I incresingly read words like “dealing with reality” and ” need to compromise” – almost always they are excuses to cheat. The CoR have a huge responsibility to reform swimming, not be corrupted by it. It’s for that reason principles that were not held to in this case do matter.

  • Alison

    If it is good enough for the President of the United States to be allowed only 2 consecutive terms of office,
    http://en.wikipedia.org/wiki/Twenty-second_Amendment_to_the_United_States_Constitution
    it should be good enough for Swimming New Zealand to adhere to the wording of it’s own constitution. The wording of Swimming New Zealand’s constitution is clear and only those with devious motives try to blur that wording. And remember, the President of the USA is elected, not appointed.