In the Matter of a Mail Dispute                                )
Between                                                                )
                                                                               )
CAROLE LALLY                                                     )
                                                                               )
and                                                                         )
                                                                               )
ROB FERDERBER,                                                  )
DEBRA M. NICKLE and                                           )
KERIN BURCHER                                                    )     P.S. Docket No. MD 98-422

APPEARANCE FOR DISPUTANT:                           Carole Lally
           CAROLE LALLY                                          P.O. Box 537
                                                                               Osteen, FL 32764-0513

APPEARANCE FOR DISPUTANTS:                         James E. Shepherd, Esq.
           ROB FERDERBER                                        Pohl & Short, P.A.
           DEBRA M. NICKLE and                                P. O. Box 3208
           KERIN BURCHER                                         Winter Park, FL 32790-3208

This mail dispute has been docketed pursuant to Postal Operations Manual (POM 7, August 1, 1996) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to River Oaks Estates Homeowners Association,

Inc., River Oaks Homeowners Association, P. O. Box 513, Osteen, FL 32764-0513. The mail is currently being held by the Osteen Postmaster.

Disputant Ferderber submitted the sworn statement of Ray Rutledge, a director of the Association, and other supporting documents, in accordance with 39 C.F.R. §965.5. Disputant Lally submitted an unsworn statement, with accompanying documents. The following findings of fact are based on the parties' submissions and information from the Postal Service that was included in the file referred to the Judicial Officer.

1. Elections of officers were held at the July 18, 1998 General Membership meeting of the River Oaks Estates Homeowner's Association ("Association"). The voting resulted in the election of Disputant Carole Lally as Secretary and Kerin Burcher as Treasurer. The voting for President resulted in a tie between two candidates. In addition, five directors were voted into office. (Meeting Minutes, Lally submission).

2. At this same meeting, the Vice President resigned his position. (Lally submission).

3. Section 3.2.d of the Association's By-Laws provides that vacancies of officers and directors shall be filled by other members of the Association selected by the Board. (Association By-Laws, Ferderber submission).

4. Section 5.3 of the By-Laws provides that the Vice-President shall exercise the powers and perform the duties of the President in the absence or disability of the President (Association By-Laws, Ferderber submission).

5. At an August 11, 1998 meeting of the Association, at which four of the five directors were present, Disputant Ferderber was appointed to the position of Vice-president (Ferderber submission).

Disputant Lally contends she is still an officer of the Association and, as such, is authorized to control the mail. Disputant Ferderber contends that Ms. Lally was removed from her office as Secretary of the Association and no longer has the right to receive or otherwise control the mail of the Association.

It is not necessary to make any determination concerning whether officers of the Association acted properly in removing Ms. Lally from the office of Secretary. It is uncontested, and is apparent from the record submitted by the parties, that Mr. Ferderber was appointed by the Association's board of directors to the vacant position of Vice-President of the Association. In the absence of the President, he has all the authority of the President. As such, Mr. Ferderber is entitled to control delivery of the mail addressed to the Association. See Domestic Mail Manual §D042.4.1 (January 1, 1997).

This dispute concerns only delivery of the disputed mail. It does not address any other dispute that may exist between the parties. Further, if a court directs delivery of the mail in a different manner, the mail will be delivered according to a court order.

The attached delivery order should be issued.

William K. Mahn
Administrative Judge