Noor Saga-Failed Arbitration Part 1. Who is to blame?

Before you read this posting, please read Noor Saga-Introduction, if you have not done that yet.

The Resolution Committee

Farag and the other three board members (later known as the disputed board members) wanted to mediate the issue with Saqr and tried involving a few people quietly for this effort. This did not work. Then, on advice from their attorney, they called for a meeting of about 35 people of the Noor community on October 4, 2009, including many respected elders. They invited Saqr and asked him to invite whomever he wanted. Saqr was at the Center during the meeting but did not attend. At this meeting a resolution committee was formed and comprised of Dr. Azeez Haque (Chairperson), Mohammed Amin, Jamal Mansour, Aneezal Mohamed, and Dr. Asma Mobin-Uddin.

The resolution committee was asked to address the following issue and report back to the larger group of community leaders:

"Review the By-Laws of American Islamic Waqf (“AIW”) and discuss with Saqr whether he would agree to binding arbitration by this committee on a finding of whether or not Ayoub, Mandourah, and Islam, are legitimate members of AIW Board."

The resolution committee reviewed the By-Laws of AIW and then met with Saqr, (and Amgad Saleh via conference call), on Sunday, October 25, 2009. The meeting lasted about 2.5 hours. Saqr agreed to abide by the decision of the resolution committee once Farag presented evidence supporting his position that Ayoub, Mandourah, and Islam were members of AIW Board. However, Saqr did not agree to unconditional binding arbitration.

The committee asked Farag, as requested by Saqr, to provide evidence supporting the position that Ayoub, Mandourah, and Islam were validly appointed members of AIW Board. Farag insisted that the committee should get a binding arbitration commitment from Saqr before he could provide any such evidence.

Being frustrated by the lack of progress and because the resolution committee was unable to secure a commitment to binding arbitration by Saqr, Hassan Ayoub wrote on 10/31/2009:

“We thank the brothers and sisters that formed the original arbitration committee however we have realized that these legal matters are best handled by legal experts such as retired judges or magistrates. It will also involve legal precedents and applications that may be beyond the expertise of some members of the original arbitration committee."

On October 31, 2009 the resolution committee requested that a vote be taken by the elders that attended the meeting to form this committee on whether or not their role should be expanded and the overwhelming majority of these voters agreed not to expand the committee’s role. This ended the role of the resolution committee. [It is not clear to me what exactly the resolution committee asked for.]

Calls for binding arbitration

On Sunday November, 1 2009 Omar Tarazi, a local lawyer wrote, ” If anybody files any kind of legal action in court right now it would be very damaging to the whole community.” He reminded the community of the recent attacks against Masjid Noor with the court filings in Florida regarding the Rifqa Bary case. He added that arbitration is “an area that is best handled by a professional. A professional will solve your problems quickly and most importantly it will not go in the newspaper.”

And he proposed: ”On Monday [the next day] both sides can call the big name law firms in town and look for a non-Muslim lawyer who specializes in nonprofit law who also is willing to do an arbitration. Once this person is identified, both sides sign a contract with that individual. Both sides will also turn over all property such as keys, files, and E-mail lists to that individual. That individual will then conduct a professional arbitration hearing all the evidence from both sides.

By the end of the week the individual then makes a decision based on all the evidence regarding who exactly is legally in charge of the organization and he will then turn over to those individuals all of the keys, files, E-mails lists etc.

So by this Friday we can be done with this fight, it will probably take the arbitrator $300 per hour for I would guess 8 hours to do this work. This means a total of $2,400. The cost to each side is $1,200, and we have a final decision regarding who legally is in charge and those people will also have all of the property of the organization.”

The next day Ahmad Al-Akhras wrote:
"I humbly suggest that a group of three Muslim lawyers of the community, may be selected by those on this list --since it seems everybody copies the same names on their emails-- and they put the rules for a binding arbitration. Only then things would move forward. I do not believe other than both parties agreeing to the binding arbitration any solution would be achieved.

Dear brothers and sisters --I believe each and every one of you have a stake in this. Do not let this mess get out to the public, the whole community would suffer for many years to come. Look at EVERY example from around the country, if you go public and to have courts decide, such an act would create a scar that would never go away. "

Omar Tarazi's arbitration framework

Then Omar Tarazi worked tirelessly and quietly away from the public eye for over a month. Many compromises were made, and Tarazi went back and forth repeatedly between both parties in order to reach an arbitration framework that would be acceptable to all. This was not an arbitration, but an effort to hire an outside professional arbitrator and get both sides on board with a common understanding of how the arbitration would be conducted.

On December 7, 2009, Khaled Farag announced the acceptance of his side of the Arbitration Framework as Developed by Attorney Omar Tarazi and added

“ We are now still waiting for Dr. Hany Saqr to commit to arbitration so that we may resolve all disputes, find closure and move forward with the communities work. Unfortunately after initially committing to arbitration within a legal frame work developed by Br. Omar, Hany has continued to make changes and stall the process.

Dr. Hany has continued to drag his feet by asking for revision upon revision and asking for more time to consider proposal after proposal, without sincerely committing to the process. We fear that these tactics are no more than a strategy to extend this conflict and leave the community in a frozen state, while Hany considers his options.

The organization cannot continue to be placed on hold while Hany considers his options. We are making a final appeal to Hany to stop the gamesmanship and political maneuvers so that the proper legal resolution is found and a final determination of the facts is established. Only then can this community start the healing process and initiate the reforms that are desperately needed. “

Then he issued an ultimatum: “Therefore, in an attempt to move forward and protect the community’s good name, and valuable assets, we will give Dr. Hany one more week to commit to this binding arbitration frame work”, “If no commitment has been made by 5:00PM Friday, December 11, 2009, we must move to protect the organization and this community by any legal options that may be available.”

Accepted arbitration frame-work

On December 9, 2009, Saqr and Saleh, after making minor editing to some of the 15 points of Omar Tarazi's arbitration framework and adding a new point asking for a full audit to be conducted in parallel, offered the following, called Saqr Arbitration Framework:

“ 1- All decisions will be made by the neutral non-Muslim lawyer[attorney Richard Pace] acting as a binding arbitrator who will be agreed to by all the parties. The parties agree that the arbitrator is attorney Richard Pace who has 27 years experience and his information is attached below.
2- All parties are free to have their own lawyers assist them or represent them in the arbitration proceedings.
3- All parties will sign a binding arbitration agreement and deliver all property of the organization that is in their personal possession (files, lists, construction contracts, financial records, bank statements, officially documents for board member appointments, etc.) to the arbitrator.
4- The parties will split the cost of the arbitrator.
5- The neutral arbitrator will conduct a binding arbitration trial with the rules based on the Ohio Rules of Civil procedure to determine which member of all disputed parties, one by one, is a legally binding board member of the organization. The neutral arbitrator will make findings of fact regarding disputed factual allegations and make a legal conclusion based on the legal evidence and facts and according to the rule of law, which member of all disputed parties has legal legitimacy to be a board member of the Organization.
6- This means all parties will have the rights of discovery, to present their case, to present witnesses to cross examine other witnesses etc.
7- As part of this trial, members of all disputed parties will have the opportunity to present allegations of specific claims of gross breach of fiduciary duty against any other member of all disputed parties.
8- The neutral arbitrator will conduct a binding arbitration trial with the rules based on the Ohio Rules of Civil procedure and make findings of fact regarding each specific claim of gross breach of fiduciary duty and then make a legal conclusion of whether or not those findings amount, individually or collectively, to a gross breach of fiduciary duty.
9- All hearings will be conducted in public with the arbitrator ensuring that certain confidential information is protected like social security numbers and individuals’ bank account numbers etc.
10- The neutral arbitrator will have the power to remove from power a real board member or determine that a disputed party member is not a legitimate board member, if that member does not cooperate in good faith with the arbitration process.
11- Once the real board is determined, the board members who do not have a determination against them that they grossly breached their fiduciary duty to the organization vote on what to do with the board members who do. If the number of board members who do not have a determination of gross breach of fiduciary duty against them is less than three, then the arbitrator will work with those real board members who do not have a determination against them that they grossly breached their fiduciary duty to the organization to identify and appoint a sufficient number of board members so that there are three board members who do not have a determination against them who can vote on what to do with those who do have that determination against them.
12- The neutral arbitrator will then deliver all property of the organization to the legally valid board.
13- The neutral arbitrator will deliver to all parties a copy of all findings, determinations and decisions which shall also be made available to the Muslim community.
14- The goal is to complete the entire process within one month.
15- The neutral arbitrator will make non-binding recommendations on improvements that could be made to the bylaws.
16- In parallel to the arbitration process, the organization will conduct a full financial audit of all its books, financial records, transactions, receipts, bank statements, etc. Upon conclusion of the audit process if any financial violation(s) were found against one or more of the real board members who do not have a determination against them that they grossly breached their fiduciary duty to the organization, the board membership of those members will be automatically terminated. If the number of real board members then becomes less than three, then the arbitrator will work with the parties to identify and appoint a sufficient number of board members.”

The next day, Farag, Ayoub, Mandourah and Islam announced their acceptance of the above offer made by Saqr and Saleh. Soon after that all disputed members each deposited $500 with Attorney Omar Tarazi to start the process. Unfortunately theses efforts shortly collapsed (we will cover that in a future posting) and the issue headed to court.

My personal thoughts

Had Br. Hany Saqr agreed, from the beginning to a binding arbitration by the above mentioned respected resolution committee of Muslims back in October of 2009, Noor Saga could have been solved six month ago, tens of thousands of dollars in legal fees could have been saved, the present division of the community could have been prevented and hundreds of wasted hours could have been used for the benefit of the community.

I believe the larger Muslim community in general, the 35 or so members of the Noor community committee, and the resolution committee in particular, failed to at least exercise enough pressure on all parties, particularly on Br. Saqr to accept the binding arbitration. Saqr’s request that Farag produce any evidence before Saqr committed to a binding arbitration was illogical, and against the concept of arbitration. In binding arbitration you agree on the arbitrator(s) and the issue(s) to be arbitrated first. Then the arbitrator(s) set up the ground rules for the arbitration and proceeds.

I hope and pray that the larger Muslim community, the Noor community, and the newly appointed AIW board members will do a better job by asking privately and publicly for Br. Saqr to resign. They also need to declare themselves as transitional board members and appoint an independent constitution committee to start the true organizational reform. Otherwise, we the Muslim community in central Ohio, will be repeating the same experiment and expecting a different result!