Executive Session

[George Mervosh]

When RONR says " In any society, certain matters relating to discipline (61, 63), such as trials, must be handled only in executive session." (RONR, p. 95) :

 

Does RONR mean a vote still required to enter into executive session for a trial or, is this automatic and the only vote that might be required is in regards to which non-members may be permitted to stay in the room?

[Josh Martin]

When RONR says " In any society, certain matters relating to discipline (61, 63), such as trials, must be handled only in executive session." (RONR, p. 95) :

 

Does RONR mean a vote still required to enter into executive session for a trial or, is this automatic and the only vote that might be required is in regards to which non-members may be permitted to stay in the room?

 

The latter.

 

"At the trial, in calling the meeting to order, the chair should call attention to the fact that the meeting is in executive session (9), and to the attendant obligation of secrecy" (RONR, 11th ed., pg. 664, line 30 - pg. 665, line 1).

[George Mervosh]

The latter.

 

"At the trial, in calling the meeting to order, the chair should call attention to the fact that the meeting is in executive session (9), and to the attendant obligation of secrecy" (RONR, 11th ed., pg. 664, line 30 - pg. 665, line 1).

 

That's what I thought the answer would be, but goodness gracious to overlook that quote was quite embarassing. 

[J. J.]

I think it is suspendable rule, though I would not recommend it.

[George Mervosh]

I think it is suspendable rule, though I would not recommend it.

 

So you don't think there is any individual right for the defendant to have his trial held in executive session?  I wouldn't dismiss the argument totally.  I'm just not sure.

[J. J.]

So you don't think there is any individual right for the defendant to have his trial held in executive session?  I wouldn't dismiss the argument totally.  I'm just not sure.

 

 

No.  I believe that if the meeting was held in open session, it would not create a continuing breach, nor cause the trial to be null and void.  It very well could create legal problems for the assembly, but not procedural ones.

 

In looking at p. 655, the reasons for conducting the trial in executive session are to protect the assembly, not the accused member. 

 

While I would not advocate conducting disciplinary action in open session, generally, I would not say that it invalidates the action.

[Josh Martin]

No.  I believe that if the meeting was held in open session, it would not create a continuing breach, nor cause the trial to be null and void.  It very well could create legal problems for the assembly, but not procedural ones.

 

In looking at p. 655, the reasons for conducting the trial in executive session are to protect the assembly, not the accused member. 

 

While I would not advocate conducting disciplinary action in open session, generally, I would not say that it invalidates the action.

 

The rules on pg. 655 state that the society does not have a right to disclose any of the information from the trial. I don't think suspending the rules would grant the society a right it doesn't have. Holding the trial in open session, at the very least, increases the chances that information from the trial will be disclosed.

[J. J.]

The rules on pg. 655 state that the society does not have a right to disclose any of the information from the trial. I don't think suspending the rules would grant the society a right it doesn't have. Holding the trial in open session, at the very least, increases the chances that information from the trial will be disclosed.

 

 

I don't believe that suspending the rule would create a "right" to have an open session.  For example,  a society does not have a "right" to adopt a motion expressing an opinion, provided it does not violate the bylaws.  It may do so.

[Guest Edgar]

 . . . a society does not have a "right" to adopt a motion expressing an opinion, provided it does not violate the bylaws.  It may do so.

 

It may do so because it has a right to do so.

[J. J.]

It may do so because it has a right to do so.

 

 

The society would not have a specific right to adopt that specific motion.  The society also has the ability, you may call it a "right" if you would like, to suspend a rule in the nature of a rule of order, with some exceptions.  It is not a procedural rule of law, nor a stated FPPL, nor a rule protecting absentees.  I am not seeing this as a basic right of an individual member, though the member may seek redress in court if the action is libelous, just the same as he could should a resolution in the example be libelous (as could a nonmember).

[Josh Martin]

I don't believe that suspending the rule would create a "right" to have an open session.  For example,  a society does not have a "right" to adopt a motion expressing an opinion, provided it does not violate the bylaws.  It may do so.

 

Hm. I'm not sure I necessarily agree with your example, since adopting a motion to express an opinion seems to fall under the freedom to determine the course of action of the group mentioned in pg. 1, lines 8-11, and "freedom" is often synonymous with "right."

 

Nonetheless, your general point is well taken. The fact that the society does not have a right to disclose information does not necessarily mean it cannot dislose it. Additionally, the text does say that such information should not be disclosed, which suggests that it can be disclosed, even though doing so would be horribly unwise and possibly illegal.

[J. J.]

Hm. I'm not sure I necessarily agree with your example, since adopting a motion to express an opinion seems to fall under the freedom to determine the course of action of the group mentioned in pg. 1, lines 8-11, and "freedom" is often synonymous with "right."

 

Nonetheless, your general point is well taken. The fact that the society does not have a right to disclose information does not necessarily mean it cannot dislose it. Additionally, the text does say that such information should not be disclosed, which suggests that it can be disclosed, even though doing so would be horribly unwise and possibly illegal.

 

 

I wouldn't use the word "illegal."  "Creating a tort" might be a better term. 

 

 

I would liken it, in terms of wisdom, to rescinding a contract.  That might be horribly unwise and may open the society up to legal action.  However, that does not make it out of order. 

[George Mervosh]

Nonetheless, your general point is well taken. The fact that the society does not have a right to disclose information does not necessarily mean it cannot dislose it. Additionally, the text does say that such information should not be disclosed, which suggests that it can be disclosed, even though doing so would be horribly unwise and possibly illegal.

 

Actually I view this a bit differently. 

 

The entire quote is " But neither the society nor any member has the right to make public any information obtained through such investigation; if it becomes common knowledge within the society, it should not be revealed to any persons outside the society. Consequently, a trial must always be held in executive session, as must the introduction and consideration of all resolutions leading up to the trial."  p. 655

 

I think the rule means it cannot be disclosed and because it cannot be disclosed, the trial must be held in executive session, which is the established procedure used to enforce secrecy and possibly punish members for such a disclosure.  If the rule regarding holding the trial in executive session is suspendable I don't think it changes what RONR says, in essence, cannot be done, even if the rule says "should".

[J. J.]

Why could it not be disclosed?

[George Mervosh]

Why could it not be disclosed?

 

J.J., I'll end my participation here by saying yes, the society can disclose whatever they choose to disclose as "horribly unwise" (to quote Josh) as it might be to do so, but I don't think they can use what is written in RONR as an authorization or justification for doing so.  I just don't see the ambiguity in the rules.

[J. J.]

I agree that the rule requiring disciplinary action be in executive session is unambiguous.  My question is if it is capable of being suspended.  I cannot come up with a reason why it could not be suspended, though it is usually extremely unwise to do so.  

I can think of one circumstance where it may not be unwise.  The society feels that the situation needs to be investigated, but the individual is completely exonerated.  The society wishes to publicly indicate that.  There are some societies that may use disciplinary action for that.

[Shmuel Gerber]

No.  I believe that if the meeting was held in open session, it would not create a continuing breach, nor cause the trial to be null and void.  It very well could create legal problems for the assembly, but not procedural ones.

 

In looking at p. 655, the reasons for conducting the trial in executive session are to protect the assembly, not the accused member. 

 

While I would not advocate conducting disciplinary action in open session, generally, I would not say that it invalidates the action.

 

Actually I view this a bit differently. 

 

The entire quote is " But neither the society nor any member has the right to make public any information obtained through such investigation; if it becomes common knowledge within the society, it should not be revealed to any persons outside the society. Consequently, a trial must always be held in executive session, as must the introduction and consideration of all resolutions leading up to the trial."  p. 655

 

I think the rule means it cannot be disclosed and because it cannot be disclosed, the trial must be held in executive session, which is the established procedure used to enforce secrecy and possibly punish members for such a disclosure.  If the rule regarding holding the trial in executive session is suspendable I don't think it changes what RONR says, in essence, cannot be done, even if the rule says "should".

 

J. J.,

I don't know how you can possibly read "But neither the society nor any member has the right to make public . . . Consequently, a trial must always be held in executive session" and come to the conclusion that "the reasons for the conducting the trial in executive session are to protect the assembly, not the accused member."

If the accused member wants to waive his right to having the trial in executive session, then I would agree the rule could be suspended. But otherwise, forget about it. The rules relating to trial provide certain substantive rights to the accused member, and they cannot simply be suspended like run-of-the-mill rules of order.

[J. J.]

J. J.,

I don't know how you can possibly read "But neither the society nor any member has the right to make public . . . Consequently, a trial must always be held in executive session" and come to the conclusion that "the reasons for the conducting the trial in executive session are to protect the assembly, not the accused member."

If the accused member wants to waive his right to having the trial in executive session, then I would agree the rule could be suspended. But otherwise, forget about it. The rules relating to trial provide certain substantive rights to the accused member, and they cannot simply be suspended like run-of-the-mill rules of order.

 

 

Well, is this a substantive right?  His presumed right to secrecy in the procedings is not one of those listed.

 

The next question is, if the the trial is otherwise proper, does the fact of it not being in executive session make the trial null and void?

[Shmuel Gerber]

Well, is this a substantive right?  His presumed right to secrecy in the procedings is not one of those listed.

 

The next question is, if the the trial is otherwise proper, does the fact of it not being in executive session make the trial null and void?

 

Based on the language that George cited from page 655 -- which, by the way, is under the heading "Rights of the Society and the Accused" (emphasis added) -- I would say that the accused does have a substantive right for the trial to be held in executive session.

That being the case, I don't think the question of suspending the rule that "a trial must always be held in executive session" is in any way tied to whether the violation would make the trial null and void.

Still, the accused might argue that violating the rule does invalidate the trial. For example, he might have a defense which would be so embarrassing if widely known, that he would rather be disciplined by the society than report the facts when nonmembers are present.

[J. J.]

Based on the language that George cited from page 655 -- which, by the way, is under the heading "Rights of the Society and the Accused" (emphasis added) -- I would say that the accused does have a substantive right for the trial to be held in executive session.

That being the case, I don't think the question of suspending the rule that "a trial must always be held in executive session" is in any way tied to whether the violation would make the trial null and void.

Still, the accused might argue that violating the rule does invalidate the trial. For example, he might have a defense which would be so embarrassing if widely known, that he would rather be disciplined by the society than report the facts when nonmembers are present.

 

I do think it is tied to that.  I find the argument that violations of rules that can be suspended cannot create a continuing breach compelling, along with its converse. 

 

As for the second argument, the accused could just as easily claim that defense witness that would refuse to testify in closed session would invalidate the trial, for example.

[Shmuel Gerber]

As for the second argument, the accused could just as easily claim that defense witness that would refuse to testify in closed session would invalidate the trial, for example.

 

I have no idea what you mean by that, but if the accused wants to waive his right to an executive session, he may do so. The society has no obligation to agree.

[J. J.]

I have no idea what you mean by that, but if the accused wants to waive his right to an executive session, he may do so. The society has no obligation to agree.

 

Well, if the accused wants to call a witness, that would refuse to testify, perhaps because the trial is in executive session, and the assembly refuses to go into open session, why can't the accused claim that this violates his right to present a defense. 

 

Similarly, what if the accused says that the only way he could attract proper witnesses would be if the public hears all the "lies" being said about him?  The society refuses (which I'd recommend).  The accused could claim that the society has prevented him from getting witnesses by staying in executive session.

 

I would not find either argument persuasive, but I wouldn't find the argument that he had a "right" to be tried in an executive persuasive either.

[Shmuel Gerber]

Well, if the accused wants to call a witness, that would refuse to testify, perhaps because the trial is in executive session, and the assembly refuses to go into open session, why can't the accused claim that this violates his right to present a defense. 

 

Similarly, what if the accused says that the only way he could attract proper witnesses would be if the public hears all the "lies" being said about him?  The society refuses (which I'd recommend).  The accused could claim that the society has prevented him from getting witnesses by staying in executive session.

 

I would not find either argument persuasive, but I wouldn't find the argument that he had a "right" to be tried in an executive persuasive either.

 

So I think what you're saying is that you're not persuaded by the argument that the member's rights have been violated when the society, against the member's wishes, chooses to do the opposite of what is required by the rules that both the member and the society have previously agreed to, because it is no more persuasive than an argument that the member's rights have been violated when the society, against the member's wishes, refuses to do the opposite of what those rules require.

 

If that is an accurate summary of your position, I don't think you will be persuaded by any further discussion of this.

 

[P.S.: I hope the first sentence of this post is clear enough; I apologize for leaving it at a laconic 84 words.]

[George Mervosh]

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?

[J. J.]

So I think what you're saying is that you're not persuaded by the argument that the member's rights have been violated when the society, against the member's wishes, chooses to do the opposite of what is required by the rules that both the member and the society have previously agreed to, because it is no more persuasive than an argument that the member's rights have been violated when the society, against the member's wishes, refuses to do the opposite of what those rules require.

 

If that is an accurate summary of your position, I don't think you will be persuaded by any further discussion of this.

 

[P.S.: I hope the first sentence of this post is clear enough; I apologize for leaving it at a laconic 84 words.]

 

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. 

 

My question is ultimately, if the trial is otherwise properly conducted, does the fact that it was not conducted in executive session cause the result to be null and void.  I do not see a solid argument that it is.