Timeline in progress. (Timeline is being constructed in two sections: July 6, 2005 through December 31, 2007and January 1, 2008 to present)


page 2

 

 

Following Mercedes death

 

The Foundation work was not finished. I had just come back from NY and I was still waiting for answers to the questions. given to my mother's attorney on December 18. Neither of the lawyers nor anyone from the Bank called me to discuss finishing the Foundation.  As I have said, judging by my bills, Davis talked to them a great deal about the problems my mother had with amendemnt 4 but no action action which is somewhat better than when my mother was alive when there was neither talk nor action.

 

When it came time to name the Board members, Sharon was in for a rude awakening. I was told my mother's attorney was incorperater and as such would approve or disapprove choices for the Board. The Foundation did not get the Board Mercedes and strangers were forced it. At the same time, Sharon was told by the bank that no children were to come on the ranch as long as litigation was going on. At a meeting in the office of Davis and Cannon on 6/6/07, the Bank’s lawyer said to McGinnis “I would not spend any of that money any time soon if I were you”. What he was pointing out was that the entire ownership of the estate was in question so long as Peter Kibbee's litigation was still unsettled.  Had Peter Kibbee won his suit, everything would belong to him and money that had been spent would have to be returned to him. McGinnis and the Kibbee Board, including one present and one retired Bank executive, ignored that recommendation.

There level of greed is at such a high pitch that they are incapable of waiting their turn. They had to get their hands on that money.

 

Before the Peter Kibbee litigation had gone throught the Wyoming Supreme Court in late December 2010, they voted the Y unrestricted monies of $22,000 in 2008, $50,000 in 2009, $75,000 in 2010 and over $60,000, for a feasibility study done by the Clark Group, when Sharon had offered to have it done by two McMillen executives for free, in 2010. The Clark Group did not advise they use the money for what Mercedes intended but provided many suggestions for ways the WMCA could use it. Out of those grant monies the WMCA has been given, a few small monitary gifts have been given to charities serving Sheradan's poor without any mention of Merceds Kibbee's name. Just the Y "ever so graciously, helping Sheridan's poor. Though my mother had told her attorney one half of her investments should be in eastern institutions and one half in Wyoming institutions, the Bank lawyers said that all investments must remain in Wyoming. I was able to get that changed in September of 2009.

 

They play lady bountiful with my mother’s money, giving small monetary gifts to a few Sheridan charities, to cover their posterior where Sheridan’s poor are concerned, without any mention of my mother’s name. Just the Y “so graciously” helping Sheridan’s poor. Though my mother had told (the lawyer) that half of all investments should be in an eastern institution, and half a Wyoming institution, Toner said that all investments must remain in Wyoming at (the Bank).  I received that (document? Letter?) corrected in the Bylaws in Sept. 09. My mother had told (the lawyer) that the four heirs should be allowed to choose the institutions managing their Trusts (based on our discussions, I was to decide for Joshua until he was of an appropriate age to decide for himself) but the documents state that, though the other three have this right, I do not. The Bank is in charge…permanently. All of that is irrelevant, since I asked the Bank to withdraw and was told the Kibbee Board will make that decision. That is what my question 4 in my e-mail letter to Dick Davis and his answer concern.   (awkward)(24b).  


I kept after Dick concerning the snail’s pace of the work my mother had engaged him to do, by my mother ., on my mother’s behalf, to do. He repeatedly reassured me that they were working on it and we had plenty of time. He said (the estate lawyer) told him that it simply had to be finished before the IRS filing date on 12/31/08, which gave us plenty of time to complete the appropriate changes. The single thing they did, claiming it was just the first step of many, was to draft the change to the Articles of Incorporation the my mother unwittingly? signed on February 27, 2007 which is meaningless.

...The corporation is organized and operated exclusively to carry out the purposes of the Sheridan CountyWyoming Young' Men's Christian Association...A majority of the directors must be appointed by the Board of Directors of the Sheridan County Wyoming Young Men's Christian Association.

That brought changes to the Bylaws which were signed by McGinnis on 6/21/07 (tab31_N -page 13 is missing from this document) but, just like the article of amendment, it only sort-of limited the presence of the YMCA on our Board but still names the YMCA as the principle beneficiary.

The Foundation is organized, and at all times hereafter shall be operated exclusively for the benefit of, to perform the functions of, or to carry out the purposes of, the Sheridan County Wyoming Young Men's Christian Association ("Sheridan YMCA") and any other organizations designated by the Foundation's Board of Directors on a Schedule A to these Bylaws.

Even that was reversed on 12/7/07

A. Article II: Board of Directors, Section 3(a) is deleted in its entirety and replaced with the following:...(2) Although the YMCA Board shall not be bound by the Recommendations of the Foundation's Board of Directors, it is hoped that the YMCA Board shall seriously consider and shall place a significant amount of weight upon the Recommendations.

after the bank used the illegitimate (according to Mercedes) Amendment #4 to assert their rights to finish the Foundation instead of having Sharon do it as per the directive Mercedes gave them on 12/12/06.

In the 4t Amendment to Mrs. Kibbee's trust that she executed on November 6, 2006, she directed the Trustee to create the Foundation, if that was not completed prior to her death.

I was not surprised that Through these maneuvers, they created a Foundation that best suited them instead of the one my mother wanted.

  

At the first Foundation board meeting on 6/21/07 (I was out ill) they nominated officers. As per Mercedes’ wishes, Sharon was nominated as head of the Board, and they named Bob Ferril Vice President and Jay McGinnis Secretary/Treasurer. The minutes of that meeting, under the heading “Overview of Purpose of the Foundation”, show that (the estate lawyer) told the directors that they were to have an independent Board with only one Kibbee Family Director and one YMCA or supported Organization Director “A majority of the Directors must be independent directors”. At the same time, under that same heading, he is vague about what kind of projects we will support the YMCA to run.

 

Later, when Sharon fought to get them to do projects that Mercedes wanted and not give the money to the YMCA for their camp (plumbing, tables and chairs, etc.), they took Sharon’s chairmanship away and gave it to a new member who is a former YMCA employee, married to a YMCA Board member, on the YMCA’s steering committee to raise money for their new camp, and Director of the Scott family (the Bank) Foundation. They made Sharon Vice Chair. Then they removed Sharon from that position and voted in Bruce Garber who sits on the Board of the YMCA and, as owner of the Sheridan Century 21 Franchise, does a great deal of business with (the Bank). It is all very friendly except for my poor mother. -- Can you try to end the paragraph with the term multiple conflicts of interest.

 

September 14, 2007

Jay McGinnis had lunch with Sharon at the ranch and wrote a note afterwards whereby he clearly indicates a full understanding that the Foundation was instituted purely for projects run on the Ranch.

“I share your frustrations that the foundation is not yet operational. We are both looking forward to hearing and seeing the children laugh, play, learn and discover all that can be offered at the ranch.”

BUT he goes on to ask for money for the YMCA Pines Mountain Lodge and offers to name that property “YMCA of the Bighorns, Camp Kibbee.” It seems that now that Mercedes was dead their interest shifted to their new camp and their impending loss of the large yearly income from the Whitney Foundation. McGinnis was putting the first piece in place—“We named our new camp after them.”— that would eventually justify a decision sell the Kibbee family Ranch, if they could find a legal way to do it. Sharon was not suspicious at that time and simply told Jay that, though it was a lovely offer, she believed Mr. and Mrs. Kibbee would suggest that, as some of the wealthiest families in Sheridan are still not really as generous with the Y as they should be and they already had an involvement with the Foundation, he should use the choice of the camp name as a nice piece of bait to hook one of those big families with.

 

October 3, 2007

Since their first meeting on 12/19/06, Sharon had repeatedly asked Davis to call a meeting with the bank to address Mercedes’ and Sharon’s complaints about the plans for the Foundation and the problem with her Trust. After Mercedes death, Sharon had a much longer list of things to discuss with them concerning errors and sloppy work with the bills. Some bills were left unpaid for as long as six months (I have a file full of these), others they simply refused to pay for ridiculous reasons (they refused to pay a young care-giver for hours she had worked just prior to my mother’s death because she did not have her own bank account). Sharon took care of all of those sorts of obligations out of her own funds and was only able to get a meeting, after six months of asking and after telling Davis that she had begun a conversation with the Montana Banking Commission and they were encouraging her to file a complaint.

Even though Davis’ partner Kim Cannon had no reason to be at that meeting, he was and Sharon was billed for it. They sat at the table and said not one word other than occasionally agreeing with something the banker was saying. Sharon finally resolved the problem by saying she would copy all invoices and send the originals to the Bank, who would then have to- be required? to send her a record of all bills paid by them at the end of each month. I have all of these monthly accounts from the bank, and it is/was the only way to keep them in line. In his answers to my questions, he makes it sound as though he resolved this and never really did answer my question I was asking. This sounds a bit too much like a rant. Is it necessary? Billing problems with these lawyers are not the problem we are addressing. Did they agree to anything they shouldn’t have? Or if it is money it should be spoken of in dollars.

When Sharon spoke about the Foundation (this paragraph is not clear) Tom Toner got up, brushed aside the bills saying “These are just clerical errors, I don’t have time for this, I am busy” and started to leave. As he was leaving he expressed annoyance at the expediency with which Foundation paper work, which needed to be filed with the IRS, was being handled. After the meeting I asked Dick what Tom was talking about. Dick said he would find out. Sharon was insistent on getting an answer from Dick, who finally said, “It was nothing”.

Note: Though the vast number of errors and sloppy work of the bank were brushed aside as “nothing more than clerical errors” by Tom Toner, (the estate lawyer), and Linda Thompson of (the Bank), they are now advising the Foundation Board to ignore an almost $10,000 bill for work done by a Chicago lawyer, because his billing department did not get the bill into the bank in the time allotted after my mother's death. He had, however, been billing regularly all along and was engaged by (the estate lawyer) who was brought on-board by (the Bank). They seem to feel it is only other people who must suffer the consequences of their clerical errors. My family has never grabbed a chance to avoid a bill they owed just because they could get away with it. My family name is thus being tarnished in the hands of unethical people.


November 7, 2007

The second Board meeting was held on 12/7/07?. It was conducted over dinner at the Ranch.  Sharon had the ranch manager and the head superintendent attend in order to explain any questions the members would have concerning the working and maintenance and gave each member a large packet of material on Boys and Girls Harbor after which the Foundation was to be modeled.  Jay gave each member a 3-ring binder on the cover of which said: “The Mercedes K. & Chandler H. Kibbee Foundation for Children—At the C Lazy M Ranch—Board of Directors Handbook” given to Board member Mary Barbula. It contained all paper work done so far—minutes of the June meeting and a copy of the Bylaws signed on June 21. Note: Also, at this point Jay knew the correct name of the Foundation as is evidenced by this binder cover. (should we put the statement that the name is incorrect here?)

 

Sharon had asked Jay to head the meeting instead of her. She believed, since it was her first meeting, that would be a good indication to the Board that she understood she was just one of seven. At one point he stood up and said that he would like to go around the table and have each member say a few words about “Why the Y?” Sharon was distressed that he did not ask “Why the Kibbee Foundation?” and later told him so. When she left the meeting she also mentioned it to Kate and Karen, our cook and the ranch manager’s wife.

 

At the next Board meeting, the minutes did not reflect his wording but said “…asked to share why they are willing to serve on the Board and be involved in the work of the Kibbee Foundation”. Sharon asked that the wording be changed to reflect what he actually had said and he denied having said “Why the Y?”,  gave one of his looks to the Board members, and all the members in unison did not remember. I’m not sure about this.

 

As each member spoke, Dr. Neithammer, who Mercedes had wanted on the Board but was present only as a courtesy and not allowed to vote, showed a real interest in the mission? and had put serious thought into ideas for projects. He made a wonderful contribution as everyone else simply watched Jay for their lead. Dr. Neithammer is, of course, no longer a Board member.

 

Mid December, 2007

At some point (Sharon and Mercedes were never informed of its occurrence) (the estate lawyer) filed with the IRS as a Type III supporting organization (Sharon and Mercedes were still waiting for the answers to her questions when Mercedes died) and, though Sharon was not told about this, the request was rejected by the IRS.(on what grounds?) He then, without any discussion with Sharon, chose to file as a Type I Foundation that existed solely to support the Sheridan YMCA. Jay McGinnis, without telling anyone, signed an amendment to the Foundation bylaws on December 7 which stated that the YMCA would be in control of a majority of the Board seats, giving them total control of Foundation activities.

 

Dick Davis called me in NYC to say we had “a little glitch” and they had discovered that the date for filing with the IRS was 12/31/07 not 12/31/08 as they had been telling me. Now it was all hurry, hurry, and get the Board members to drop by the office to sign, no time for meetings no time for changes (certainly no time for me to start calling lawyers in New Mexico or New York state purpose). This mistake was not something that had just been discovered. They had known for a long time. (can you prove it?) Sharon asked, in her letter to Dick

When did each of the two foundation lawyers know that these IRS changes were on the horizon and when did the changes actually go into effect? When did they tell you? Why was I only told at the last minute?

and received no response.

Response - 5. Notice of IRS position on Foundation. I cannot answer the question of when (the estate lawyer) pr Jarrett Bostwick first learned of the IRS's position with respect to the Kibbee Foundation, but I can assure you that you learned about it almost immediately after I did. I assume they learned of it after the original filing as had they known before that they would not have advised us to proceed. Under separate cover I have sent you a letter with a memorandum prepared by (the estate lawyer) explaining this situation. I also just learned today that the IRS has approved the Kibbee Foundation documents as modified so that distributions may commence under the terms of the trusts---as soon as I have a copy of the ruling I will send it to you.

There is no way of knowing how long but it is clear that what Tom was referring to on 10/03, when we had that meeting at the bank, was this situation. Getting an IRS filing date of by an entire year is no little glitch, it was a huge mistake and I believe it was intentional.

Davis said he was faxing a copy for Sharon’s signature, which she was to get back to him right away, because if they did not finalize this, there would be no Foundation. Sharon said that if a majority of the Board agreed to this, there was nothing she could do at that time, but she was absolutely not going to sign that document. Dick knew that a board majority would do the job, and though he claims that he told Sharon she did not have to sign, what he actually did was to keep pushing her to sign. Under the circumstances, and considering his role as??? , he should have advised Sharon of what the consequences of her having approved of this could mean to getting the changes he was supposed to be working on done elaborate once more. When she discovered the Board members had not been told about her refusal to sign and questioned Davis about that, his emailed answer says that he believed they had not been told for fear it might influence their decision about their own choice to signing. Davis refers to his call about the “little Glitch” in a letter to Sharon written in January 2008. 
 
In talking to Board members, Sharon has since discovered some facts that she did not know. On 12/7/07, after Jay signed changes to the Bylaws, contrary to what he states in his letter of 1/14/10 (36), he never called an emergency Board meeting to explain the change of classification of the Foundation or the changes to the Bylaws. A vote was never taken on the new Bylaws, the Board members were never told that Sharon had refused to sign off on these changes, or explain why she had refused and the new Bylaws were not sent to the Board members for their binders. Instead, someone (who?) called each Board member individually and asked them to pass by the offices of Davis and Cannon and sign papers for the IRS filling. No further explanation was made. Two board members, Sophie and Mary, say that they, and as far as they know all other members other than Jay and perhaps Bob Ferril, had no idea the structure of the Foundation was changing so dramatically.

The Foundation does not have the sophisticated Board Mercedes wanted; these people trust their friends and others in the town. They just stopped by Davis and Cannon, were they were told sign here and here, and signed off on something they knew nothing about. When, in the summer of 2009, Sharon gave them copies of the 12/7/07 changes to the bylaws, none of them had ever seen a copy or been given one for their binders, they only had the June 07 set. Before they understood that admitting they knew nothing about those Bylaws would reflect badly on Jay, they all said they had never seen them. (Most might change their story about that now, but Sophie and Mary will not lie.) Actually, they had seen it. It was the second “sign here” of those documents that they were asked to sign at Davis & Cannon under the guise of “for an IRS filing”. At that point, it became clear to Sharon why they did not believe her lawyer Hank Bailey when, a few weeks earlier, he had told them that the YMCA could actually liquidate the entire Foundation and keep the money for the YMCA.   

After that, a memo was sent to Sharon on 12/10/07, from (the estate lawyer) through Dick Davis (37). In it he explains his choice to file as a Type I supporting organization. He compares Type I and Type III supporting organizations but never mentions that he was told to make the foundation a private foundation if a supporting organization would not allow for the specifics that Mercedes had laid out and the reason he had originally, in his letter of 8/30/06, recommended a private Foundation to fulfill Mercedes’ wishes.  At the end of page 4 he says

Although the YMCA will potentially be in a position of greater control over the Foundation if the Foundation qualifies as a Type I supporting organization, l believe the Type I alternative offers the best solution to allow the Foundation to operate as originally envisioned by Mrs. Kibbee. I view this as an interim solution to allow the Kibbee Foundation to be granted tax-exempt recognition by the end of this year. Once the IRS issues its regulations for Type Ill functionally Type III functionally integrated supporting organizations, I would recommend the Foundation request a change in its recognition to qualify under that provision.

This is a simply breathtaking statement:

1.)    Had (the estate lawyer) not been operating on the incorrect presumption that the filing date was 12/31/08, the Board would not have been put in the position of having to rush at the last minute in order to prevent a large tax burden for Mercedes’ estate. It could have been gotten right the first time.

2.)    Had (the estate lawyer), Davis, and the Bank followed instructions given by Sharon on many occasions, while not only did she have Power of Attorney but a written directive from Mercedes while Mercedes was still alive and seeing visitors, the Foundation would have been settled long before and in accordance with her wishes. In summary, Sharon’s instructions were very very clear to the attorneys and they chose to ignore both Mercedes and Sharon.

 

3.)    Though Mercedes left instructions that (the estate lawyer) was to work with Sharon on getting the Foundation correctly structured, he did not. Instead, he took steps to create a Foundation that would “operate as originally envisioned by Mrs. Kibbee” using a statement he claims she made to him on 11/15/??, behind closed doors, that is totally contradicted by his letter of 8/30/06, his letter of 9/14/06, my mother’s own words in the directive of 12/12/06 (show) and the testimony of every single person she spoke to for almost eight months. Backing him up on what was said are (her lawyer) and (her banker) who were also in the meeting. He also said that the articles of incorporation were read to Mercedes on that day (we know that is not so). How would he explain the video taped statements from (her lawyer) three months later on 2/27/?? Those statements are more in keeping with his 8/30/06  let ??(show)—talk is (which speaks ?) of needy children on the ranch and not a word about the YMCA except in two Freudian slips by (her lawyer) when she said “to the Y’ and quickly changes  to “to the Foundation”. For website I think we should put this part of the video clip

4.) (Her lawyer) knew Mercedes did not want the Y to have any control (as confirmed in her directive and again in the video), to say the least of total control. His statement “…I view this as an interim solution to allow the Kibbee Foundation to be granted Tax-exempt recognition by the end of this year. Once the IRS issues its regulations for Type III functionally integrated supporting organizations, I would recommend the Foundation request a change in its recognition to qualify under the provision” is disingenuous to say the least. A man of his experience knows full well that once the YMCA controlled Board can stick it’s hand in the Kibbee “piggy bank” any time they want, and really clean up through the sale of the Ranch, they are not ever going to vote to “request a change in its recognition”. He knows they are not going to vote away that cash cow. He is not naïve! The IRS is now? approving Type III and the Kibbee Board rejected it as they obviously would. In addition, the Type III does not confirm to her wishes.

 

5.) In his deposition, (the estate lawyer) makes made? the following statement with respect to the meeting he had with Mercedes on November 15:

ELD —She [Mercedes] was particularly concerned that she not waste a lot of the foundation’s money on administrative overhead.  She wanted it to be lean, and as a supporting organization I assured her it would be that way because we’d rely on the Y to do grant-making materials and stuff like that, ...

(hereby acknowledging that Mercedes expected the Kibbee Foundation to be asking for grants for us not giving them to others. The Board now says they will not fundraise)


and they wouldn’t have to spend their money as a separate standalone foundation. Cause at one time we talked about a private operating foundation that would be standalone, with its own officers and its own staff and all that, and she said no. “I don’t want that. I want to use the Y’s resources.”

 

(LD) where is this in deposition?

 

Sharon had insisted that using the Y’s resources was a good idea when Mercedes was not yet convinced that she wanted the Y involved and why she finally agreed to have them on board if the Type III filled her requirements. Sharon and Mercedes were concerned that the Foundation’s money be used wisely—to stay lean—and, based on what Sharon was being told by lawyers, she advised her mother that the Type III supporting organization choice was good because they could rely on the Y to help with grant-making requests, and supply some of the staff on an “as needed” basis rather than our hiring people on a “full time” basis and Mercedes agreed, if it allowed the Foundation to use the Y’s resources and complied with her absolutes. It is now clear that it does not. A straight forward 501 (c) (3) would do everything she wanted.

 

In summary, what (the estate lawyer) does know is that by structuring the foundation with the YMCA in this manner, he is putting the trusts in the control of his friends at the Bank, with whom he often works, and where he has personal friendships, (the Banker’s) boss Bob Librick. He knows this is not what Mercedes chose to do with her money and her Ranch nor is it that for which Sharon sacrificed a large inheritance.