I have just read the following report in the November 13 2011 issue of the New Zealand Sunday Star Times.

SWIMMING: FINA STEPPING IN

World Aquatics body Fina is to contact Swimming New Zealand over long-term administrative hostility.  Executive director Cornel Marculescu has confirmed Fina will be seeking information over prolonged governance issues blighting Kiwi swimming.   Extensive problems have included calls for the Swimming NZ board to resign en masse, debate over potential constitutional breaches by senior officials and high performance structural inadequacies.  But it appears Swimming NZ has not communicated its difficulties to Fina.  “Fina is not aware of any problems within Swimming New Zealand,” Marculescu said.  “We will contact Swimming New Zealand asking for any information.”  Swimming NZ general manager Mike Byrne said he was not in a position to make public comment.

Recently Swimming New Zealand has had all the openness of a 1960s Soviet Politburo. Normally sources close to Swimwatch find out what’s going on and tell me all they know. I’ve told you before about my contact in Australia who knows a Swimming New Zealand staff member and a close friend in Italy who has a relative involved in the SPARC organization. I asked them for more information about this item in the Sunday Star Times. All they could tell me is that no one is talking. My Italian friend did say that she had heard that SPARC had influenced the Board of Swimming New Zealand to reappoint Butler and Wrightson as independent Directors. SPARC’s pressure was applied, she thought, after the Board had initially voted against the reappointment of Butler and Wrightson.

I realize all this is not much information to go on, but if it is true the Board of Swimming New Zealand and SPARC have acted in clear breach of FINA Rule BL13. Certainly the rumours I was hearing make it worthwhile laying a complaint with FINA and having FINA determine the truth. Because, if there is merit in the accusations being made, SPARC and the Board of Swimming New Zealand are leading this sport into a very dark place indeed.

Here therefore is the complaint I will be sending to FINA tomorrow morning. It sets out the information I have on some very corrupt deals in the Swimming New Zealand and SPARC Board Rooms.

COMPLAINT AGAINST SWIMMING NEW ZEALAND

SUMMARY OF COMPLAINT

This complaint asserts that at the Board Meeting of Swimming New Zealand held on Sunday 6 November 2011 the New Zealand government agency known as SPARC exerted undue financial and political pressure in order to alter a constitutional vote of the Swimming New Zealand Board and secure the reappointment of two independent directors to the Board. This complaint argues that the political and financial pressure applied by SPARC in order to alter a proper vote by the Swimming New Zealand Board was in breach of FINA Rule BL13.

FINA Rule BL13 reads as follows:

BL 13 AUTONOMY OF THE NATIONAL FEDERATIONS MEMBERS OF FINA

By Laws

When the autonomy of a NF is being, or is, compromised the FINA Executive is entitled to take any appropriate decisions in order to protect the benefits of Aquatic Sports in the Country or the Sport Country of a NF. These measures include the suspension or the expulsion from the FINA membership if the constitution, law or other regulations in force in the Country or Sport Country of the NF concerned, or any act by any governmental or other body provokes the activity of the NF or the making or expression of its will to be hampered. The procedure shall be as established in FINA C 12.

In particular this complaint contends that the action taken by SPARC is in breach of the section of this rule that says, “These measures include the suspension or the expulsion from the FINA membership if any act by any governmental or other body provokes the activity of the NF or the making or expression of its will to be hampered.”

In this case the Board of Swimming New Zealand had expressed its will and had declined to reappoint two independent directors. That “will” of the Board was then “hampered” by the intervention of a “governmental” agency.

CIRCUMSTANCES OF THE COMPLAINT

1. The Annual General Meeting of Swimming New Zealand was held on Sunday 30 October 2011.
2. At that Annual Meeting two new members were elected to the Board – Suzanne Speer and Nevill Sutton. The two new Board members were joined by four returning elected Board members Mark Berge, Ron Clarke, Alison Fitch and Humphrey Pullon.
3. The following Sunday, 6 November 2011, the Board of Swimming New Zealand met for the purpose of considering the appointment of two independent Directors to the Board and to appoint a Chairman of the Board. The business of this first Board Meeting following an Annual Meeting is covered by Rule10 of the Swimming New Zealand Constitution. Rule10 says:

10.1 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.

10.2 President and Vice President

(a) The members of the Board shall immediately after the AGM, or as soon as possible in the event of an extraordinary vacancy, convene a meeting to elect the President and Vice President.

1. Two independently appointed Directors were seeking the approval of this first Board meeting to be reappointed for a further two year period – Jane Wrightson and Ross Butler. Whether either of these Directors should have been seeking reappointment is open to serious doubt. Ross Butler had already served three, two year terms (six years) on the Board of Swimming New Zealand and Jane Wrightson had served two, two year terms (four years). It appears conclusive that the reappointment of both Directors therefore was in contravention of Rule10.1(b) which restricts independent Directors to two terms of two years. However, whether it is constitutional or not, both these Directors were seeking the approval of the new Board for further terms as independent Directors.
2. Ross Butler was also seeking the approval of the Board Meeting to be appointed Chairman of the Swimming New Zealand Board and President of Swimming New Zealand.
3. The meeting voted on the reappointment of Wrightson and Butler and on the appointment of Butler as Chairman/President. All the appointment remits were lost by four votes to three. The four elected members voting against the motions to reappoint Wrightson and Butler as the two independent Directors were Speer, Sutton, Pullon and Fitch. The three Board members voting for the appointments were Berge, Clarke and Wrightson. It needs to be noted that Butler was absent from this meeting.
4. Once the vote of reappointment to the Board and appointment to the position of Chairman/President was lost, the three members who had voted for the appointments and the two SPARC Board observers (Kerry McDonald and Nelson Cull) left the meeting. I understand they left after expressing their disgust at the appointments being rejected by the Board.
5. Fifteen minutes later the three directors and the two SPARC observers returned to the meeting. I understand that Nelson Cole proceeded to lecture and harangue the four negative voters and ordered them to change their vote. I understand there was a clear threat made that SPARC’s funding was at risk if the votes of the dissenting Board Members were not changed and the appointments proposed in these remits were not confirmed by the Board in a revote. The discussion took twenty minutes and was clearly a case of governmental/political interference in the management of a sporting organization. Cole called the Board dysfunctional and said he would report to SPARC that it was not capable of managing the sport. He would recommend that the current Review of the sport be discontinued. These were all clear threats to the Board of Swimming New Zealand by a New Zealand government agency; a clear case of intimidation using the power of the state.
6. A second vote was ordered. Three of the four dissenting Directors folded and changed their vote to approve the appointments. Only Suzanne Speer continued to vote against the appointments.

10.  I believe that in the fifteen minutes the Board Directors and SPARC observers left the meeting they called Peter Miskimmin, the CEO of SPARC. I believe Miskimmin ordered his observers to bring the Board of Swimming New Zealand into line and to ensure the dissenting Directors fold to SPARC’s political pressure. I believe Cole and McDonald followed those instructions.

SANCTIONS RECOMENDED

1. The actions of SPARC and the Swimming New Zealand Board are a clear breach of FINA Rule BL13. Political interference of this nature has no place in a democratic society.
2. FINA Rule12 covers the remedies available to FINA in the case of breaches of FINA’s rules.
3. In this case I recommend FINA order SPARC to remove its two observers (McDonald and Cull) from the Swimming New Zealand Board. They have breached all standards of good behaviour and have applied powers they have no right to exercise.
4. I recommend that FINA order the Swimming New Zealand Board to reinstate the original negative vote of the Board declining the appointments of the two independent Directors (Wrightson and Butler).
5. I do not recommend that a second revote is ordered. The SPARC threat is still present and continues to prevent a fair and honest Board vote.
6. I recommend FINA order the Swimming New Zealand Board to reinstate the vote declining the appointment of Butler to the position of Chairman/President.
7. I also recommend that FINA lobby the New Zealand Government with a view to having Miskimmin removed from the office of CEO of SPARC on the grounds of gross misconduct. I understand that Miskimmin has said since the Board meeting that the requirement for “stability” of Board membership justified SPARC’s dictatorial intervention in this case. An individual holding these views has no place in sport’s management. The end does not justify the means.

CONCLUSION

1. The behaviour of SPARC and the Swimming New Zealand Board in this case cannot be allowed to pass. It is important to FINA that the sport of swimming in New Zealand is run by an organization that is responsible to the world body.
2. SPARC are not responsible to FINA. Their actions in this case need to be addressed by the sport’s governing body.