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Posted

If a board member was called into an executive meeting to answer to a specific issue, the member prepared for this issue. The member was then presented with other issues they were not aware of. 

The issues are being brought to the full board for a vote due to "Questionable Candor". They will meet without the board member and then invite them in either for discussion or after a vote. This information has not been shared. 

Bylaws state: Any director may be removed from his office by affirmative vote of two-third of all directors at any regular or special meeting (in person or remote) called for that purpose. Members may be removed for nonfeasance, malfeasance, or misfeasance, for conduct detrimental to the interests of the corporation, for lack of sympathy with its objects, for refusal to render reasonable assistance in carrying out its purposes, or whenever in the directors’ judgment the best interests of the corporation will be served thereby."

If the bylaws also state: "The President shall preside at all meetings of the Board of Directors to which he/she is of attendance. The President shall have and exercise general charge and supervision of the affairs of the corporation and shall do and perform such other duties as may be assigned to that office by the Board of Directors. The president will have no formal vote unless there is a tie."

There are no policies or procedures outlined for any officer or the role of the officer in question. Only bylaws in place. The entire board is new aside from 2 members, 1 in question to be removed.

Questions-

Can the President cast a vote to increase an odd number to a 2/3 majority or only in a tie or do they have a vote in this matter? Does a tie apply in a 2/3 required vote? If a tie does not apply, the president does not vote?

Does the member in question have the right to know the outcome of the vote in numbers to ensure it was a proper 2/3 and how would they properly ask for this information? Are they able to request to be present during the vote and/or discussion?

Current board consists of 9 total directors and officers. 8 minus the member in question. If all are present and the president votes, would the vote need to be at least 6 affirmative to satisfy 2/3 for removal.

There seems to be a few different rules of order being violated. The person would have likely stepped down anyhow due to the hostility of the new board but wanted to wait till ensured the new board had the organization's best interests at heart. 

Can a board remove an officer because they just don't like them? 

Thank you for any feedback and guidance.

 

Posted (edited)
On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

Can the President cast a vote to increase an odd number to a 2/3 majority or only in a tie or do they have a vote in this matter? Does a tie apply in a 2/3 required vote? If a tie does not apply, the president does not vote?

No.  If the rules in RONR applied, the president could cast a vote any time that one vote might affect the outcome, to create or deny a majority, or achieve or deny a two-thirds vote, or whenever the vote is by ballot.  But unfortunately, your bylaws say the president may only vote in case of a tie. And your bylaws supersede the rules in RONR.

On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

Does the member in question have the right to know the outcome of the vote in numbers to ensure it was a proper 2/3 and how would they properly ask for this information? Are they able to request to be present during the vote and/or discussion?

Do your bylaws say that the member in question shall be excluded from such a meeting in the first place?  If not, then I'd say they have the right to be present, and even to debate and vote on (presumably against) their own removal.  But stay tuned for other opinions.

On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

Current board consists of 9 total directors and officers. 8 minus the member in question. If all are present and the president votes, would the vote need to be at least 6 affirmative to satisfy 2/3 for removal.

It depends how many vote.  To satisfy a two-thirds threshold, there would have to be at least twice as many Yes votes as No votes. If everyone votes and the result is 6-3, that is a two-thirds vote. But if three people abstain, the vote would have to be at least 4-2.

Edited:   Your bylaws say two-thirds of all the directors, which would require six votes in all cases.

On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

Can a board remove an officer because they just don't like them? 

No, according to your rules they must at least have a belief that "the best interests of the corporation will be served thereby."  Of course there's no way to prove that they have a good-faith belief of that.

Edited by Gary Novosielski
Fix vote requirement
Posted
On 1/9/2024 at 11:13 PM, Gary Novosielski said:

It depends how many vote.  To satisfy a two-thirds threshold, there would have to be at least twice as many Yes votes as No votes. If everyone votes and the result is 6-3, that is a two-thirds vote. But if three people abstain, the vote would have to be at least 4-2.

On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

 

On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

Bylaws state: Any director may be removed from his office by affirmative vote of two-third of all directors at any regular or special meeting (in person or remote) called for that purpose. Members may be removed for nonfeasance, malfeasance, or misfeasance, for conduct detrimental to the interests of the corporation, for lack of sympathy with its objects, for refusal to render reasonable assistance in carrying out its purposes, or whenever in the directors’ judgment the best interests of the corporation will be served thereby."

 

Understanding this language is non-standard, it looks to me like it requires a 2/3 vote of the entire membership of the board.

Posted
On 1/9/2024 at 11:23 PM, Joshua Katz said:

 

Understanding this language is non-standard, it looks to me like it requires a 2/3 vote of the entire membership of the board.

Hello, I appreciate this. So the verbiage of "at any regular or special meeting" wouldn't include absent members,  such as the one in question. If they have discussion prior to the member allowed in the meeting, does that member then have the right to vote on the matter or does a conflict of interest prevent it?

Posted
On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

Current board consists of 9 total directors and officers. 8 minus the member in question. If all are present and the president votes, would the vote need to be at least 6 affirmative to satisfy 2/3 for removal.

 

 

On 1/10/2024 at 7:39 AM, Guest AndSto77 said:

So the verbiage of "at any regular or special meeting" wouldn't include absent members,  such as the one in question.

 

On 1/9/2024 at 10:11 PM, Guest AndSto77 said:

Any director may be removed from his office by affirmative vote of two-third of all directors at any regular or special meeting (in person or remote) called for that purpose.

It does not matter if all are present, or how many are present. "At any regular or special meeting" tells you the types of meeting at which the motion is made, and does not impact the vote threshold. The vote threshold is that you need aye votes equal to 2/3 of the total membership of the board. That is 6, as you say above. But it is 6 whether everyone is present or not, and regardless whether the President votes.

On 1/10/2024 at 7:39 AM, Guest AndSto77 said:

If they have discussion prior to the member allowed in the meeting, does that member then have the right to vote on the matter or does a conflict of interest prevent it?

Are you asking whether members may discuss among themselves before the meeting, and then vote at the meeting? Discussions with other members of the voting body do not constitute conflicts of interest, they are part of the process of making a decision. The RONR concept analogous to a conflict of interest is that of a personal or pecuniary interest not in common with the others, which will not arise from discussions prior to the meeting. Additionally, RONR states that even in such circumstances, a member may not be denied the right to vote.

However, I'm not entirely sure if that is what you are asking, so if not, please rephrase.

Posted
On 1/9/2024 at 9:11 PM, Guest AndSto77 said:

Can the President cast a vote to increase an odd number to a 2/3 majority

Under your bylaws, it would appear not. Under RONR, the chair may vote in any case where it affects the outcome. (Also, under the small board rules, the chair may vote in any case.) Your bylaws, however, explicitly (and unwisely) provide that the President may vote only to break a tie. A tie vote is one in which the votes are equally divided.

On 1/9/2024 at 9:11 PM, Guest AndSto77 said:

Does the member in question have the right to know the outcome of the vote in numbers to ensure it was a proper 2/3 and how would they properly ask for this information?

If he’s still a member, he has a right to view the minutes, which would include the result of counted votes.

On 1/9/2024 at 9:11 PM, Guest AndSto77 said:

Are they able to request to be present during the vote and/or discussion?

Yes, unless your bylaws provide otherwise.

On 1/9/2024 at 9:11 PM, Guest AndSto77 said:

Current board consists of 9 total directors and officers. 8 minus the member in question. If all are present and the president votes, would the vote need to be at least 6 affirmative to satisfy 2/3 for removal.

Yes.

Further, I would note that the bylaws provide the vote required is “affirmative vote of two-third of all directors.” So it seems to me it requires six votes whether or not some members are absent (or abstain).

I’m not sure the drafters of this provision really thought through the implications of this and its interaction with the rule prohibiting the President from voting, but regardless, that’s what the rule says.

On 1/9/2024 at 9:11 PM, Guest AndSto77 said:

Can a board remove an officer because they just don't like them? 

I suppose so. Your bylaws provide a long list of reasons why a Director may be removed, which concludes with “or whenever in the directors’ judgment the best interests of the corporation will be served thereby,” which seems sufficiently broad that a member can ultimately be removed for whatever reasons the board pleases.

On 1/10/2024 at 6:39 AM, Guest AndSto77 said:

So the verbiage of "at any regular or special meeting" wouldn't include absent members,  such as the one in question.

I don’t agree. I would read "at any regular or special meeting (in person or remote) called for that purpose” as saying that this action may be taken at any regular or special meeting, not as referring to the members present at the meeting.

On 1/10/2024 at 6:39 AM, Guest AndSto77 said:

If they have discussion prior to the member allowed in the meeting, does that member then have the right to vote on the matter or does a conflict of interest prevent it?

The member has a right to vote on the matter in any event, but he should not vote because he has an interest not in common with other members.

I don’t know that it matters, however, because this requires 2/3 of all board members. So whether the accused member votes no or abstains, it will have the same effect.

Posted
On 1/10/2024 at 7:48 AM, Joshua Katz said:

 

 

It does not matter if all are present, or how many are present. "At any regular or special meeting" tells you the types of meeting at which the motion is made, and does not impact the vote threshold. The vote threshold is that you need aye votes equal to 2/3 of the total membership of the board. That is 6, as you say above. But it is 6 whether everyone is present or not, and regardless whether the President votes.

Are you asking whether members may discuss among themselves before the meeting, and then vote at the meeting? Discussions with other members of the voting body do not constitute conflicts of interest, they are part of the process of making a decision. The RONR concept analogous to a conflict of interest is that of a personal or pecuniary interest not in common with the others, which will not arise from discussions prior to the meeting. Additionally, RONR states that even in such circumstances, a member may not be denied the right to vote.

However, I'm not entirely sure if that is what you are asking, so if not, please rephrase.

Hello,

The board meeting begins at 7:00pm and the member in question has been instructed not to join till 7:45pm. At that time they will be informed of the discussion and outcome of the vote. It wouod appear the member has the right to ask to be present and there is nothing in the bylaws preventing this. Unless there is a superseding Rule of Order that does.

Also, if I'm gathering correctly, it doesn't matter how many members are present or vote, 6 votes are required for removal. Which is essentially nearly unanimous once the member in question and Presidents votes are excluded. 

Now, I will also note, our VP is a lawyer, so I'd hate to feel like I'm advocating against someone with more legal knowledge. 

I appreciate every response and it has prompted a deeper review of the bylaws and the many pieces it appears to be being violated separately. 

Now, I'm sure once this information is shared, they could take steps to change the bylaws. 

Posted
On 1/10/2024 at 11:39 AM, Guest AndSto77 said:

Also, if I'm gathering correctly, it doesn't matter how many members are present or vote, 6 votes are required for removal. Which is essentially nearly unanimous once the member in question and Presidents votes are excluded. 

Yes.

On 1/10/2024 at 11:39 AM, Guest AndSto77 said:

Now, I'm sure once this information is shared, they could take steps to change the bylaws. 

Certainly.

Posted
On 1/10/2024 at 8:51 AM, Josh Martin said:

Under your bylaws, it would appear not. Under RONR, the chair may vote in any case where it affects the outcome. (Also, under the small board rules, the chair may vote in any case.) Your bylaws, however, explicitly (and unwisely) provide that the President may vote only to break a tie. A tie vote is one in which the votes are equally divided.

If he’s still a member, he has a right to view the minutes, which would include the result of counted votes.

Yes, unless your bylaws provide otherwise.

Yes.

Further, I would note that the bylaws provide the vote required is “affirmative vote of two-third of all directors.” So it seems to me it requires six votes whether or not some members are absent (or abstain).

I’m not sure the drafters of this provision really thought through the implications of this and its interaction with the rule prohibiting the President from voting, but regardless, that’s what the rule says.

I suppose so. Your bylaws provide a long list of reasons why a Director may be removed, which concludes with “or whenever in the directors’ judgment the best interests of the corporation will be served thereby,” which seems sufficiently broad that a member can ultimately be removed for whatever reasons the board pleases.

I don’t agree. I would read "at any regular or special meeting (in person or remote) called for that purpose” as saying that this action may be taken at any regular or special meeting, not as referring to the members present at the meeting.

The member has a right to vote on the matter in any event, but he should not vote because he has an interest not in common with other members.

I don’t know that it matters, however, because this requires 2/3 of all board members. So whether the accused member votes no or abstains, it will have the same effect.

Update. The meeting was held, board member kicked out when discussions and vote were to begin. Not only did they remove the board member but relived them as a coach of the organization. Off to determine their rights to appeal and how they can do something when there is no policy in place or bylaw to carry it out. 

Posted (edited)
On 1/11/2024 at 11:07 PM, Guest AndSto77 said:

Off to determine their rights to appeal and how they can do something when there is no policy in place or bylaw to carry it out. 

I'm not sure what exactly you mean by an "appeal."

RONR does have a general "appeal" process in relation to the chair's ruling on a Point of Order. So a Point of Order could be raised at a meeting of the board or of the general membership, alleging in some manner that there was a violation of the rules, and that the removal was invalid as a result. The former board member could only do so at the latter, since he is no longer a board member. Generally, it is very difficult to invalidate an action after the fact. Based solely upon the facts presented, I do not see any grounds for ruling the removal null and void. The only violation I can see is the fact that the board member was kicked out of the meeting.

While this is quite serious, and action should be taken to prevent the board from doing this in the future, it does not seem to me this affects the validity of the removal.

"If one or more members have been denied the right to vote, or the right to attend all or part of a regular or properly called meeting during which a vote was taken while a quorum was present, a point of order concerning the action taken in denying the basic rights of the individual members can be raised so long as the decision arrived at as a result of the vote has continuing force and effect. If there is any possibility that the members' vote(s) would have affected the outcome, then the results of the vote must be declared invalid if the point of order is sustained. If there is no such possibility, the results of the vote itself can be made invalid only if the point of order is raised immediately following the chair's announcement of the vote. If the vote was such that the number of members excluded from participating would not have affected the outcome, a member may wish, in the appropriate circumstances, to move to Rescind or Amend Something Previously Adopted (35), to move to Reconsider (37), or to renew a motion (38), arguing that comments in debate by the excluded members could have led to a different result; but the action resulting from the vote is not invalidated by a ruling in response to a point of order raised at a later time." RONR (12th ed.) 23:7

As we have previously discussed, the member's absence has no impact on the outcome of the vote. The rule in question will require six affirmative vote for a board of nine, period, regardless of whether some of these members are absent or abstain.

Under the disciplinary procedures in RONR, if the accused is improperly excluded from disciplinary proceedings, I think a Point of Order could also be raised regarding the violation of the member's due process rights and his right to present his defense. However, your bylaws have their own procedures for discipline, which do not appear to confer any such rights on the accused. While the member certainly still has a general right to speak in debate, violate of that right is insufficient to invalidate the action, as noted in 23:7.

I wish to be clear - I am by no means condoning the board's actions in this matter. A board member has a right to be present, even during disciplinary proceedings concerning the member, unless the bylaws provide otherwise. (The accused must also leave after a certain point in the proceedings under Section 63 of RONR, but that is not applicable here.) It was highly improper for the board to remove the accused. Nonetheless, it does not appear to me that, in these circumstances, this violation constitutes a continuing breach.

If by "appeal" you instead mean some other body reviewing the merits of the case against the former board member and determining whether to reverse the board's judgment in this matter, no such appeal process exists, unless provided for in your bylaws.

In my view, based upon the facts presented, the options with respect to "challenging" the removal are as follows, which are not necessarily mutually exclusive.

  • Do nothing.
  • Potentially, raise a Point of Order, followed by an Appeal, at a membership meeting - if there is some other violation I am not aware of. The facts presented do not support this course of action.
  • Amend the bylaws to change the manner in which board members are removed.
  • Take the board's actions into account in the next regular board elections, and try to defeat the board members responsible.
  • Consult an attorney to determine if there is any legal recourse in this matter. (I am not an attorney and express no view on whether there is legal recourse.)
Edited by Josh Martin
Posted
On 1/12/2024 at 8:06 AM, Josh Martin said:

I'm not sure what exactly you mean by an "appeal."

RONR does have a general "appeal" process in relation to the chair's ruling on a Point of Order. So a Point of Order could be raised at a meeting of the board or of the general membership, alleging in some manner that there was a violation of the rules, and that the removal was invalid as a result. The former board member could only do so at the latter, since he is no longer a board member. Generally, it is very difficult to invalidate an action after the fact. Based solely upon the facts presented, I do not see any grounds for ruling the removal null and void. The only violation I can see is the fact that the board member was kicked out of the meeting.

While this is quite serious, and action should be taken to prevent the board from doing this in the future, it does not seem to me this affects the validity of the removal.

"If one or more members have been denied the right to vote, or the right to attend all or part of a regular or properly called meeting during which a vote was taken while a quorum was present, a point of order concerning the action taken in denying the basic rights of the individual members can be raised so long as the decision arrived at as a result of the vote has continuing force and effect. If there is any possibility that the members' vote(s) would have affected the outcome, then the results of the vote must be declared invalid if the point of order is sustained. If there is no such possibility, the results of the vote itself can be made invalid only if the point of order is raised immediately following the chair's announcement of the vote. If the vote was such that the number of members excluded from participating would not have affected the outcome, a member may wish, in the appropriate circumstances, to move to Rescind or Amend Something Previously Adopted (35), to move to Reconsider (37), or to renew a motion (38), arguing that comments in debate by the excluded members could have led to a different result; but the action resulting from the vote is not invalidated by a ruling in response to a point of order raised at a later time." RONR (12th ed.) 23:7

As we have previously discussed, the member's absence has no impact on the outcome of the vote. The rule in question will require six affirmative vote for a board of nine, period, regardless of whether some of these members are absent or abstain.

Under the disciplinary procedures in RONR, if the accused is improperly excluded from disciplinary proceedings, I think a Point of Order could also be raised regarding the violation of the member's due process rights and his right to present his defense. However, your bylaws have their own procedures for discipline, which do not appear to confer any such rights on the accused. While the member certainly still has a general right to speak in debate, violate of that right is insufficient to invalidate the action, as noted in 23:7.

I wish to be clear - I am by no means condoning the board's actions in this matter. A board member has a right to be present, even during disciplinary proceedings concerning the member, unless the bylaws provide otherwise. (The accused must also leave after a certain point in the proceedings under Section 63 of RONR, but that is not applicable here.) It was highly improper for the board to remove the accused. Nonetheless, it does not appear to me that, in these circumstances, this violation constitutes a continuing breach.

If by "appeal" you instead mean some other body reviewing the merits of the case against the former board member and determining whether to reverse the board's judgment in this matter, no such appeal process exists, unless provided for in your bylaws.

In my view, based upon the facts presented, the options with respect to "challenging" the removal are as follows, which are not necessarily mutually exclusive.

  • Do nothing.
  • Potentially, raise a Point of Order, followed by an Appeal, at a membership meeting - if there is some other violation I am not aware of. The facts presented do not support this course of action.
  • Amend the bylaws to change the manner in which board members are removed.
  • Take the board's actions into account in the next regular board elections, and try to defeat the board members responsible.
  • Consult an attorney to determine if there is any legal recourse in this matter. (I am not an attorney and express no view on whether there is legal recourse.)

Excellent information and details. My main concern is if there is the ability to submit a request for the following.

-Details of the grounds used for removal and information supporting the details.

-Minutes of the discussion including the roll call vote with or without names of members. 

-Raise a point that no policy was violated based on the lack of policy.

-Note there is no conflict of interest policy, yet multiple board members have a personal connection to the member in question. 

-Details utilized for the further action taken by the board and if they actually can do what they did. Essentially preventing the volunteer from being present at any event, or interacting on the field with players.

As I've looked for legal advice to determine if I have any rights to the information, I've been unable to locate the type of advice.

Posted (edited)
On 1/15/2024 at 9:33 AM, Guest AndSto77 said:

My main concern is if there is the ability to submit a request for the following...

As I've looked for legal advice to determine if I have any rights to the information, I've been unable to locate the type of advice.

Well, certainly anyone can request anything, but whether that request will be granted is a different story. I think your real question is whether you have a right to the information, which I don't really know how to answer because I don't know who you are. :)

What exactly is your role in all of this? Are you the board member that was removed? Are you another member of the board? Are you a member of the organization, but not the board? What positions you hold will affect what rights you have.

Speaking generally, someone who is not a member of the organization at all has no rights whatsoever, at least as a parliamentary matter. A member of the board will have fairly significant rights in this regard. A member of the organization, but not the board, will have little rights as an individual, but may be able to obtain more information if he can persuade the rest of the membership to order disclosure of the information. The person who was removed is no longer a board member.

Further, while this is ultimately a legal question that is beyond the scope of RONR and this forum, there are often applicable laws granting board members broad rights to access information of the society, above and beyond what is provided for in RONR. There may also be rules in applicable law or the organization's rules granting additional rights in this regard to the membership.

On 1/15/2024 at 9:33 AM, Guest AndSto77 said:

-Details of the grounds used for removal and information supporting the details.

There is no particular right for anyone to have this information, although some of this information may be in the minutes.

Either the board or the membership could order the board to disclose this information. For the membership to do so would require a 2/3 vote, a vote of a majority of the entire membership, or a majority vote with previous notice.

On 1/15/2024 at 9:33 AM, Guest AndSto77 said:

-Minutes of the discussion including the roll call vote with or without names of members. 

A member of the board has a right to view the minutes.

A member of the organization, but not the board, does not have the right to view the minutes. However, the membership could order the board to disclose this information. For the membership to do so would require a 2/3 vote, a vote of a majority of the entire membership, or a majority vote with previous notice.

Whether the minutes will include a roll call vote will depend on whether a roll call vote was actually taken. The purpose of a roll call vote is to force members to go on record, so I'm not entirely clear on what the purpose of a roll call vote in an executive session would be. I also don't know what you mean by a roll call vote "without names of members" - a roll call vote, by definition, will include names of members.

What should be included for the vote in the minutes depends on how the vote was taken.

  • For an uncounted vote (such as a voice vote, uncounted rising vote or show of hands vote, or unanimous consent), the minutes will simply say that the motion was adopted, and nothing further.
  • If a counted vote was ordered, the count will be included in the minutes (e.g. 6 yes, 1 no), but not how specific board members voted.
  • If a ballot vote was taken, the tellers' report will be included in the minutes, which would look something like this:
    • TELLERS' REPORT
      Number of votes cast    7
      Necessary for adoption (two-thirds of entire membership)   6
      Votes for motion    6
      Votes against    1
    • Obviously, if a ballot vote is taken, the votes of individual board members will not be included (or known).
  • If a roll call vote was taken (and I have no idea why one would be in these circumstances), the minutes would then include how each board member voted, or mark them as "Present" if they abstained.
On 1/15/2024 at 9:33 AM, Guest AndSto77 said:

-Raise a point that no policy was violated based on the lack of policy.

Okay. Who cares? The bylaws say the board can remove a member "for nonfeasance, malfeasance, or misfeasance, for conduct detrimental to the interests of the corporation, for lack of sympathy with its objects, for refusal to render reasonable assistance in carrying out its purposes, or whenever in the directors’ judgment the best interests of the corporation will be served thereby."

The bylaws don't require the removal to be based on a violation of policy.

On 1/15/2024 at 9:33 AM, Guest AndSto77 said:

-Note there is no conflict of interest policy, yet multiple board members have a personal connection to the member in question. 

Okay. I don't know what that would accomplish. This is the extent of what RONR says about "conflict of interest."

"No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion. However, no member can be compelled to refrain from voting in such circumstances." RONR (12th ed.) 45:4

Since I don't know the nature of the "personal connection," I don't know if this rises to the level of RONR suggesting a member should abstain, but in any event, RONR provides that members always have the right to vote. And since you say yourself the organization has no policy on this manner, they can't be violating your organization's policy.

On 1/15/2024 at 9:33 AM, Guest AndSto77 said:

-Details utilized for the further action taken by the board and if they actually can do what they did. Essentially preventing the volunteer from being present at any event, or interacting on the field with players.

You would have to see what the bylaws say concerning the authority of the board, either in that regard specifically, or at least the board's authority generally.

But if the board is granted such expansive authority that it can remove board members, I think they can probably ban volunteers from events.

Edited by Josh Martin
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