Executive Session

[Shmuel Gerber]

 

No, I am saying that it is not the accused's call, in either case.  That is a lot different than what you are stating.

 

I do not see an individual right, created in RONR for the accused to conduct the trial in executive session (or in an open session); it is certainly not one of those stated rights on p. 656, ll. 1-6.  You may state that it should be. 

 

 

I am saying there is a difference between a claim involving a violation of the rules and one involving doing exactly what the rules say. You seem to think they are somehow equivalent.

And why do you think the rules on page 656 are more dispositive than the rules on page 655?

[Shmuel Gerber]

What I've learned from all of this is that the rules cited provide a substantive right to both the society and the accused, and it's going to take the explicit agreement of both the society and the accused to hold the trial outside of executive session.  Is that a reasonably accurate summation?

 

George,

That's a reasonably accurate summation of my own opinion. I should add that it does not necessarily represent the views of the authorship team or its other members.

I should also add that my example of the harm that could be caused to the accused by holding the trial in open session was just meant as something that could reasonably be claimed as a violation that improperly affected the outcome of the trial. I'm not saying that is the reason this rule cannot be suspended, or even that I would personally find such a claim ultimately persuasive.

[George Mervosh]

That's a reasonably accurate summation of my own opinion. I should add that it does not necessarily represent the views of the authorship team or its other members.

 

Noted.

 

 

I should also add that my example of the harm that could be caused to the accused by holding the trial in open session was just meant as something that could reasonably be claimed as a violation that improperly affected the outcome of the trial. I'm not saying that is the reason this rule cannot be suspended, or even that I would personally find such a claim ultimately persuasive.

 

I understand. Thanks.

[Burke Balch]

 

 

 

I do not see an individual right, created in RONR for the accused to conduct the trial in executive session (or in an open session); it is certainly not one of those stated rights on p. 656, ll. 1-6.  You may state that it should be. 

 

 

This member of the authorship team agrees with Shmuel that the rule requiring a disciplinary trial to be in executive session may not be suspended without the consent of the accused. RONR (11th ed.), p. 261, ll. 15-17 (SDC 7) states, "[N]o rule protecting a minority of a particular size may be suspended in the face of a negative vote as large as the minority protected by the rule."  As has already been pointed out in this thread, the society does not have "the right to make public the charge of which an officer or member has been found guilty, or to reveal any other details connected with the case [except the result that the member is expelled or the officer is removed from office]." Id. p. 655, ll. 12-19.  This rule protects the accused (a minority of one) from having disparaging information about him or her made public. Conduct of disciplinary proceedings outside executive session would of course have the effect of making all of the prohibited disparaging information public.

 

It may be objected that the resolution preferring charges may suspend the rights of the accused and that such a suspension may mean that the accused would be unable to vote against the proposed suspension of the rules requiring the trial to be in executive session.  However, id. p. 659, ll. 6-7 says the resolution may be one "if desired, suspending the rights of the accused, as in the following example" (emphasis added) and the example provides "all of Mr. N's rights as a member (except as relate to the trial) are suspended pending disposition of the case."  Id. p. 660, 22-24.  Since the rule protecting the accused against the public circulation of disparaging information (other than the mere fact of expulsion, if it occurs) obviously relates to the trial, the accused may defeat such a motion.

 

As an alternative or supplemental rationale, there are compelling arguments that the rights RONR accords to the accused in a disciplinary proceeding (including that of secrecy) are among those "concomitant" basic rights referred to on page 3, making applicable the rule that "Rules protecting a basic right of the individual member cannot be suspended. . . . These basic rights can be curtailed only through disciplinary proceedings."  Id., p. 264, ll. 6-13.  After listing " the right to  attend meetings, to make motions, to speak in debate, and to vote," the text states, "No member can be individually deprived of these basic rights of membership--or of any basic rights concomitant to them, such as the right to make nominations or to give previous notice of a motion--except through disciplinary proceedings."  Id. p. 3, ll.3-9 (emphasis added). The words "such as" make clear that the list given is not meant to be exhaustive.

 

If the right of an accused to secrecy in disciplinary proceedings can be suspended, why not any other of the accused's rights in a disciplinary proceeding, such as the rights to notice of the charges, time to prepare a defense, the ability to call and cross-examine witnesses, and the like?  Surely it is obvious this would be an absurd result, making the rule against suspending a member's basic rights except through a disciplinary proceeding meaningless. To deprive the accused of the rights she or he is given by the rules governing a disciplinary proceeding would be to make it a "disciplinary proceeding" in name only, potentially like a Stalinesque "show trial."   Indeed, it would be tantamount to arguing that although a rule prohibits suspending a member's basic rights except through disciplinary proceedings, that rule could itself be suspended so as to allow suspending a particular members' basic rights without disciplinary proceedings!

 

No, the rule mandating that disciplinary proceedings be conducted in executive session may be waived only by concurrence of both the accused and the assembly.

[J. J.]

Part of my concern in that answer was something you posted previously, the possibility of putting charges in the notice of the meeting, as opposed to stating that a disciplinary action would be taking place against the member.  That would seem to violate the secrecy requirement as much.

 

My question though recurs about the validity of a trial not held in executive session, either through design or by negligence. 

[Gary c Tesser]

potentially like a Stalinesque "show trial." .

Sure, any excuse to dump on Stalin again.

[J. J.]

Actually, the situation I was thinking about was when the member's conduct was already known to the public, possibly after criminal or civil trial. 

 

In one case, in a society where I was a member, I read about the not yet accused in a grand jury presentment and newspaper articles.

[Burke Balch]

 

 A trial by the society cannot legally establish the guilt of the accused, as understood in a court of law; it can only establish his guilt as affecting the society's judgment of his fitness for membership or office.

Ordinarily it is impossible for the society to obtain legal proof of facts in disciplinary cases. To get at the truth under the conditions of such a trial, hearsay evidence has to be admissible, and judgment as to the best interests of the society may have to be based on it. Witnesses are not sworn.  RONR (11th ed.), p. 655, ll. 19-28.

 

Actually, the situation I was thinking about was when the member's conduct was already known to the public, possibly after criminal or civil trial. 

 

In one case, in a society where I was a member, I read about the not yet accused in a grand jury presentment and newspaper articles.

A member might well be expelled, based on the sort of evidence and lower standard of proof applicable in an organization's disciplinary proceeding, yet be found "not guilty" in a trial to which legal rules of evidence and a different burden of proof apply.  That a member may be under indictment or public criticism does not free an organization operating under Robert's Rules from the obligation not to disclose publicly disparaging information beyond the fact of expulsion or removal.  RONR contains no exception to the rule requiring that disciplinary proceedings be conducted in executive session applicable whenever some disparaging information about the accused is public from other sources.

[J. J.]

We'll in the non hypothetical case, the member plead guilty in court.  I am citing that just to notes that in some cases. at least, the "disparaging information" may be a matter in the public record.  I would also note, in passing, that the assembly would not be obliged to pursue disciplinary action even after a criminal conviction.

 

The question comes do to establishing privacy in a disciplinary action as be being a "basic right of an individual member."  The question is, if so, would the failure to hold the trial in executive session be an action taken in violation of "a basic right of an individual member?"

 

If so, and the accused is found guilty, can one of his friends, who is a member, raise a point of order at the next meeting that the trial is null and void on the ground that it was not held in executive session?

 

Further, if the accused is found not guilty, can one of his enemies, who is a member, raise a point of order at the next meeting that the trial is null and void on the ground that it was not held in executive session?

[Gary c Tesser]

You have to get up in the middle of the night this time, Mr Balch, J.J. isn't finished.

[Burke Balch]

 

The question comes do[wn] to establishing privacy in a disciplinary action as be[sic] being a "basic right of an individual member."  The question is, if so, would the failure to hold the trial in executive session be an action taken in violation of "a basic right of an individual member?"

 

If so, and the accused is found guilty, can one of his friends, who is a member, raise a point of order at the next meeting that the trial is null and void on the ground that it was not held in executive session?

 

Further, if the accused is found not guilty, can one of his enemies, who is a member, raise a point of order at the next meeting that the trial is null and void on the ground that it was not held in executive session?

Yes, yes, and no. Only the last answer should require any further explanation. 

 

 

The only exceptions to the rule that a point of order must be made at the time of the breach arise in connection with breaches that are of a continuing nature, in which case a point of order can be made at any time during the continuance of the breach.  RONR (11th ed.), p. 251, ll. 3-7 (emphasis added).

The breach here is of the basic right of the  accused member to have the disciplinary proceeding conducted in executive session  so as not to make public any disparaging information about him or her (beyond the fact of expulsion if that occurs).  Obviously once the information is made public, that harm cannot directly be remedied; you can't put the toothpaste back in the tube -- and it certainly wouldn't be remedied by subjecting the harmed member, who nevertheless was found not guilty, to another trial for the same alleged offenses. The only remediable "continuing breach" would be the member being deprived of his or her membership by a disciplinary proceeding conducted in violation of his or her basic rights.  If the member was not deprived of membership (or otherwise punished), then there would be no continuing breach to be reversed by holding an untimely point of order well taken.

[Burke Balch]

 

That's a reasonably accurate summation of my own opinion. I should add that it does not necessarily represent the views of the authorship team or its other members.

I should also add that my example of the harm that could be caused to the accused by holding the trial in open session was just meant as something that could reasonably be claimed as a violation that improperly affected the outcome of the trial. I'm not saying that is the reason this rule cannot be suspended, or even that I would personally find such a claim ultimately persuasive.

In light of my last post, I should perhaps clarify that I do not mean to disagree with Shmuel's statement above; if a trial was NOT held in executive session and resulted in a member's expulsion (or other disciplinary sanction), a point of order could be raised that the failure to preserve secrecy invalidated the trial.  Whether the ruling on that point of order should indeed invalidate the trial's result might well depend on the specific facts; under some circumstances it might appropriately be deemed what in law is called "harmless error" -- that is, an action that did indeed violate the rules but could not reasonably been held to have affected the outcome of the proceeding.  Cf. RONR (11th ed.), p. 252, ll. 20-27.