Talking to the accused

[J. J.]

The question deals with a requirement for the investigating committee to "meet with the accused for a frank discussion and to hear his side of the story (p. 658, ll. 20-21)."

 

The assembly is considering disciplinary action against a member for an offense outside of the meeting.  It appoints a committee to investigate.  That committee conducts an investigation, but it does not even contact the accused.  The accused, didn't attend the meeting, and has no idea she is being charged.

 

The committee reports charges against the accused.

 

1.  At this point a point of order is raised that the accused was never contacted; should the point of order be well taken?

 

2.  The charges are adopted, an adjourned meeting properly scheduled, and notice is sent to the accused (she was absent and couldn't tell anyone that she was never contacted).  She receives timely notice.   At the adjourned meeting, may a point of order be raised that she had never contacted prior to the investigating committee recommending charges?

[Kim Goldsworthy]

reply to #1:

No.

The "error" is not a parliamentary error.

It is an act of the committee outside of the meeting.

 

The assembly is free to accept or reject the committee's behavior as appropriate or inappropriate.

The assembly is free to accept the committee report as its final report, or to re-commit the issue and charge the committee to do more work.

 

The purpose of the committee isn't to "interview".

The purpose of the committee is to "gather information", enough information for the assembly to make the judgment call.

If the assembly isn't satisfied (here, by the lack-of-interview), the assembly simply charges the committee to complete the step.

 

A "point of order" is the wrong tool for the job at hand.

[Timothy]

The proper place for a point of order would've been in the committee meeting. If someone feels the committee has not done their due diligence, they can move to refer it back to the committee.  Once the accused is charged and notified, it doesn't seem to matter whether the committee did everything they should have or not. The accused will have her opportunity to present her side of the story at the trial.

[Richard Brown]

The proper place for a point of order would've been in the committee meeting. If someone feels the committee has not done their due diligence, they can move to refer it back to the committee.  Once the accused is charged and notified, it doesn't seem to matter whether the committee did everything they should have or not. The accused will have her opportunity to present her side of the story at the trial.

 

So, to make an analogy:  If a criminal suspect is arrested and isn't read his "Miranda rights" prior to being questioned for hours by the "good cop, bad cop" team, do you believe that a confession coerced out of him should be admissible because he failed to object to the interrogation at the time of the interrogation?  The courts consistently hold that failure to advise the accused of his right to remain silent and to have an attorney amounts to a deprivation of due process.

 

Let's take it a step further.  He goes to trial without an attorney because he was never advised that he has the right to an attorney and that if he cannot afford one, an attorney will be provided for him.  (He's poor and can't afford an attorney.  He's also probably not real bright, but that's why he is to be advised of his right to free counsel).  Would it be your position that if he didn't object at trial to not having been offered an attorney, that it's just too  bad....  "have fun in jail, sucker"??   "No appeal for you", even though it's what we refer to as a continuing breach in RONR and can be raised at any time?

 

There are some things which, like in RONR, must be objected to at the time of the breach, such as "Objection, your honor. He is leading the witness".  But, errors which are at the heart of due process, such as the right to remain silent and to have an attorney and to have one appointed if you cannot afford one are at the core of due process.

 

Do you believe that the rule on page 658 that the committee meet with the accused is there just for the heck of it and that it is a rule that can be ignored willy-nilly with no consequences?  Isn't the reason for the rule to protect the accused (who still has all rights of membership) and to perhaps avoid the time, trouble, expense and trauma of a trial before the whole assembly?

 

It seems to me that, at a minimum, a reasonable argument can be made that the failure to "meet with the accused for a frank discussion and to hear his side of the story (p. 658, ll. 20-21)" as required by RONR amounts to a deprivation of "due process" that both RONR and the courts insist on in disciplinary matters.  That rule is clearly a rule protecting a right of the accused... who still has all rights of membership at that point.... to get his side of the story out early.   "Yes, I bumped into a waitress in the restaurant and caused her to drop her platter of food when she stepped out in front of me, but it was not intentional.  I was about to vomit all over everyone's food and was rushing to the bathroom.  Here's a copy of my emergency room  bill from later that night when I went to the ER to find out what was wrong with me.  I was afraid it was Ebola and if I vomited at the table I could infect everyone there.  I went straight to the ER from the restaurant.  Look at the time on the ER bill".  "That's also why I didn't pay the restaurant bill.  I forgot all about it at the time.  I went back the next day and paid it.  Here's my receipt".

 

Would that perhaps cause the investigating committee to look at the account of Member Smith, who witnessed only the bumping and then saw Member Jones leave without paying and made the complaint, in a different light?   Remember, Member Jones, who is the one who bumped into the waitress, does not even know any of this is happening.

[Timothy]

A few things to consider, first, we aren't talking about Miranda rights. Even if Miranda rights applied, since the committee didn't speak to the person or ask them any questions, there are no rights to advise them of.

 

Another thing to consider is that RONR says "the committee or some of its members" should attempt to speak to the person. In other words, the committee is not required to do so, and no particular person on the committee is required to do so. If each person does no more than is required, no one will talk to the person.

 

The committee's failure to do their job may cause the organization to hold more trials than is necessary, but that is not the same as causing someone to have an unfair trial.

[Richard Brown]

Another thing to consider is that RONR says "the committee or some of its members" should attempt to speak to the person. In other words, the committee is not required to do so, and no particular person on the committee is required to do so. If each person does no more than is required, no one will talk to the person.

Good point.  That is what RONR actually says, but J.J. didn't quote it that way.  I relied on his quote. 

 

The committee's failure to do their job may cause the organization to hold more trials than is necessary, but that is not the same as causing someone to have an unfair trial.

 

True, but in the scenario I used as an example, it probably results in an unnecessary trial with the resulting time, trouble and expense (and temporary deprivation of the rights of membership) on the part of the accused and unnecessary time and trouble on the part of the assembly.

 

Still, I am slowly being persuaded that the failure of the investigating committee to interview the accused is not such a fatal flaw that it would require the chair to sustain a point of order and either dismiss the charges or send the matter back to the investigating committee for further proceedings... although I think the assembly could certainly order that that be done.

 

I'm anxious for some others to weigh in and to hear J.J.'s take on it.

[J. J.]

On the quote, the only thing that I wanted to establish is that the accused was not afforded the opportunity to talk to the investigating committee.  If the committee made a "reasonable attempt" to talk to the accused, but was unable, that would change the question.  In this case, the "reasonable attempt" was not made by the investigating committee.

 

I'll give my take after a bit. 

[George Mervosh]

On the quote, the only thing that I wanted to establish is that the accused was not afforded the opportunity to talk to the investigating committee.  If the committee made a "reasonable attempt" to talk to the accused, but was unable, that would change the question.  In this case, the "reasonable attempt" was not made by the investigating committee.

 

I'll give my take after a bit. 

 

Are you thinking it's his individual right to have had a meetnig with them?

[Richard Brown]

Are you thinking it's his individual right to have had a meetnig with them?

That is part of my thinking.  I see how it can be viewed as a right of an individual member which cannot be suspended or waived except by that one member.   I still haven't made up my mind, but I'm leaning toward it not being dispositive. 

[Kim Goldsworthy]

To underscore my point.

 

It would have been

• reasonable

• expected

. . . for the committee to have directly talked to the accused.

 

But raising a point of order isn't the solution to the "problem" (if there is a problem at all).

[George Mervosh]

The question deals with a requirement for the investigating committee to "meet with the accused for a frank discussion and to hear his side of the story (p. 658, ll. 20-21)."

 

But the whole quote is " Before any action is taken, fairness demands that the committee or some of its members make a reasonable attempt to meet with the accused for frank discussion and to hear his side of the story" p. 658  (emphasis added by me)

[jstackpo]

Who's this guy "Fairness"?   He's not a member of NAP or AIP, near as I can tell.

[Dan Honemann]

My own view of it is that failure on the part of the committee to attempt to meet with the accused does not violate any rule of order, and certainly not one which would invalidate the proceedings. The statements made on page 658, lines 18-24, are aspirational in nature, not obligatory.

[Richard Brown]

My own view of it is that failure on the part of the committee to attempt to meet with the accused does not violate any rule of order, and certainly not one which would invalidate the proceedings. The statements made on page 658, lines 18-24, are aspirational in nature, not obligatory.

Are "aspirational" rules roughly equivalent to "should" rules?  If not, what's the difference?   Are "should" rules mandatory?

 

I'm not disagreeing with you on the rule being "aspirational".... I tend to agree.  It's something the committee should make a reasonable effort to do.   But I really am curious as to how, if at all, such a rule differs from a "should" rule and how a "should" rule differs from a "must" or "shall" rule.

[Dan Honemann]

Are "aspirational" rules roughly equivalent to "should" rules?  If not, what's the difference?   Are "should" rules mandatory?

 

I'm not disagreeing with you on the rule being "aspirational".... I tend to agree.  It's something the committee should make a reasonable effort to do.   But I really am curious as to how, if at all, such a rule differs from a "should" rule and how a "should" rule differs from a "must" or "shall" rule.

 

Don't worry about it - like pornography, you know it when you see it.

[Edgar Guest]

Are "aspirational" rules roughly equivalent to "should" rules?  If not, what's the difference?   Are "should" rules mandatory?

 

Mr. Honemann referred to aspirational statements, not aspriational rules (which, I think, would be an oxymoron). The same goes, I think, for "should" statements.

 

If, for example, bylaws said that the board should meet at least one a month, no rule would be violated if it didn't.

[J. J.]

Are you thinking it's his individual right to have had a meetnig with them?

 

 

I realized that someone could take the "fairness demands" statement as a due process requirement.  It was the argument that Richard posted.

 

While I think agreeing with Dan, I would phrase it as  "While RONR strongly encourages the committee (or some member) to attempt to  talk to the accused, it does not require it; it is not part of the due process rights of the accused.  Failure to do so would not be subject to legitimate challenge by a point of order."

 

Now, it should be clear that if I was advising an assembly on disciplinary action. I would recommend that someone from the committee talk to the accused. 

[George Mervosh]

 

Now, it should be clear that if I was advising an assembly on disciplinary action. I would recommend that someone from the committee talk to the accused. 

 

I'd recommend they make an attempt (since that's what the rule says).  Probably you would too.  The facts underlying the situation may make it impossible or unwise to make an attempt.  Either way, I don't see it as a basic right of an individual accused either.

[J. J.]

I'd recommend they make an attempt (since that's what the rule says).  Probably you would too.  The facts underlying the situation may make it impossible or unwise to make an attempt.  Either way, I don't see it as a basic right of an individual accused either.

 

 

I would agree, but even if the investigating committee would just not realize that they could, or decline to do so out of orneriness, I would not see it as something subject to a point of order.  The accused could explain it at the trial, or even debate of the charges, if the accused is present. 

[Gary Novosielski]

I realized that someone could take the "fairness demands" statement as a due process requirement.  It was the argument that Richard posted.

 

While I think agreeing with Dan, I would phrase it as  "While RONR strongly encourages the committee (or some member) to attempt to  talk to the accused, it does not require it; it is not part of the due process rights of the accused.  Failure to do so would not be subject to legitimate challenge by a point of order."

 

Now, it should be clear that if I was advising an assembly on disciplinary action. I would recommend that someone from the committee talk to the accused. 

 

If for no other reason than that the accused might have a completely reasonable explanation, or iron-clad alibi, for the allegations, which could save everyone a lot of time and effort.