Impeachment Hearing - Procedures and Rules

[HungryJack619]

I'm sure this is going to be rather long-winded and potentially confusing, but here it goes. Feel free to correct anything it looks like I've said or interpreted incorrectly.

 

Impeachment and Removal from Office:

I am a member of student government group at a public university. It's important to clarify this information because, unlike a simply deliberative body, our student government is organized similar to a national government in that it is divided into its multiple branches (Executive, Legislative, Judicial). The members of the legislative branch are currently moving forward with the removal process for one of the members of the executive branch and we are trying to clarify as much information as we can to ensure that we don't violate any rules (or laws). For the confidentiality of everybody involved to anybody who potentially sees this post, I'm creating fake names, positions, organization names, etc. with which to discuss the various details.

 

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First are details about the presentation of the charges. Obviously, RONR 11th S63 (p. 655) requires that the hearing and all information regarding it occur in Executive Session, for the protection of the accused's rights as well as the protection of the body from civil liability. Now, our Constitution currently states the following (omitting irrelevant or identifying information):

 

"The [Legislative Branch] shall be empowered to remove any [Executive Officer]. The [Legislative Branch] shall try all cases of removal in accordance with the following procedure:"

1) A Petition for Removal shall be introduced in the [Leg Branch] by at least seven (7) [Legislators] at a [Leg Branch] meeting. Upon the submission of the Petition the official named shall be considered charged, but not removed.

2) The charged official shall  be notified by of the charges and the date of the meeting at which the charged official will be tried.

3) This hearing shall be held ... at least seven (7) days after the date of the meeting at which the Petition was delivered to the [L Branch]. A twothirds (2/3) majority vote of all seats filled shall be necessary for conviction.

4) Upon conviction, the charged official shall be considered removed from office and shall be so notified.

 

Based on my understanding of RONR and the above language, the introduction of the petition can happen without notification, from the floor, but must be presented in Executive Session. It's important to note that these meetings are all public, and members of the school press are [literally] always in attendance. Also, based on my understanding of the "Steps in a Fair Disciplinary Process" (RONR 11th, p. 656) this procedure, being written into the Constitution and superseding RONR, will skip Step 1 of the RONR steps (Confidential Investigation by a Committee) and proceed to the second part of Step 2 (Skipping the report of the committee, and the petition counting as "preferral of charges"). The body would then proceed with its own procedure, which mirrors that of RONR.

 

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Second, and potentially most important, are going to be questions about the Executive Session. I know upfront that having the hearing in Executive Session will upset a lot of people, namely the student press, but I see no way around it. Apart from being specifically ordered by RONR (our Constitution, Bylaws, and Operations Manual provide no clarification or alternative), it seems as though the accused could sue the university and the organization for defamation of character if it were not held in Executive Session. Furthermore, because we do have an independent Judicial Branch that oversees Constitutionality of the organization's actions, having the hearing in public would, having violated RONR and thus our Bylaws which gives credence to RONR in matters not specifically addresses, constitute a mistrial and would certainly lead to the Judicial Branch overturning the results of the hearing.

 

However, and this is the important part, who constitutes a member during the Executive Session? It is important to point out that, according to the above citation from our Constitution, that the "The [Legislative Branch] shall try all cases..." But our Constitution also states that"

 

"Membership in this organization shall consist of all students of [university]."

"Organization" referring to the entirety of the student government, meaning that every student is a member of its government, even if not elected to Executive Office, elected as a Legislator, or appointed in either the Judiciary or Executive Branches. Am I correct in assuming that this still does not give every student the right to attend the Executive Session? Do you think it would be improper, if not allowing non-Legislator students to attend the hearing, to still allow members of the Executive and Judicial Branches to attend? Do we just tell our student media to live with the fact that they won't be allowed attendance? Our Secretary is specifically listed as a paid non-member of the Legislative Branch, so we do choose to only allow members, would it be improper to still allow the Secretary to remain? Can we just freely pick and choose, as a body, who we believe should be allowed to be present that is not a member (ex. the Student Body President, Chief Student Justice of the Judicial Branch, a representative of the University's Counsel's Office)? Would it be wrong to allow a single member of the student press into the Executive Session and allow them to report on the hearing, so long as no personal details are given (ex. they can report the number of witnesses called, the order of procedure that the hearing followed, the number of votes cast towards either side, that they feel the hearing was conducted in a fair and democratic way, but they wouldn't be able to report witness names, testimony, evidence details, discussion, votes about evidence, how certain members voted, questions asked, basically anything verbally stated, etc.)? 

 

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Thirdly, this is going to be mostly opinion, but because we are a public university, the university does have the power to punish students internally. Following this system (assuming cooperation between the student government and "student punishment" office) would it be a violation of a member's rights if we used full-time faculty members with the "student punishment" office as assistance with keeping confidentiality. Ex: our Legislative Branch has a lot of members and we obviously don't want to violate our governing documents, or state/federal law, so on top of punishing a member with removal for violating the confidentiality of an Executive Session, would it be wrong to hand them over to the "student punishment" office for additional sanctions (ex. probation, suspension, monetary fine, etc.)?

 

The same rule applies to witnesses and honesty. Dishonesty to a university official, or official entity (committee, etc.) is punishable by University rules (aka, we have our own version of perjury). Would we be wrong of us to use this office to, at least through threat of punishment, compel honest testimony?

 

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Fourth, under RONR pg. 664 it seems to suggest that the body can determine on its own whether or not the accused is allowed to bring a lawyer, since the lawyer wouldn't be a member. Is my reading of that correct?

 

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Fifth, the procedural steps listed in RONR pg. 666-667 state that all questions from members of the body that are not managers must be submitted in writing, and pg. 664 also states that "the assembly may, by majority vote, adopt a resolution to govern the trial specifying details not inconsistent with the procedures described here." According to these passages, would it be a violation of RONR to pass a resolution allowing questions to be made verbally by members, if recognized by the chair? My inclination is that the answer is no.

 

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Sixth, because of the text in the Constitution (listed above), am I correct in assuming that the body would skip the determination of the penalty (RONR pg. 667-668) because the penalty is required to be removal?

 

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Seventh, am I correct in interpreting that the body gets to dictate Rules of Evidence? As opposed to a courtroom with a set list of what can or cannot be used, it's the chair that rules or the body that votes whether a certain piece of information should be allowed? I'm assuming the body has to remain consistent with their determination of what is allowed?

 

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Lastly, how much of this would it be appropriate to disclose? We can't disclose nothing simply because the student press would have a field day about governmental cover-ups. RONR allows us to disclose that the student was removed, but how far does that go? Can we say that they were removed for a violation of the governing documents? Once they're accused, but before the trial, can we say that they've been accused of misconduct? Can we say that they've been summoned to a hearing under [insert Constitution article], which would essentially be saying they've been accused of misconduct without actually saying they've been accused of misconduct. Because our governing documents list specific things that an officer can be removed for:

 

"Proper reasons for Removal shall include, but are not limited to the following: academic misconduct, failure to keep accurate records, financial misconduct, neglect of duty, abuse of the privileges of office, and/or criminal behavior."

Are we allowed to say which of those reasons they were removed under? Would it be improper to "declassify" the petition and any resolutions passed during the Executive Session so that they can be disclosed to the public? Where is the line drawn that we shouldn't cross in terms of transparency vs privacy?

 

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Thank you, thank you, thank you for bearing with me through this. I understand that this is a lot of information to siphon through, but as you can imagine it is imperative that my body handles this appropriately. I appreciate any time taken to read through all of this, as well as any feedback. I'm coming to this forum first because I've posted here before and read through some of the different threads, and I trust the judgement of the people here better than any conclusions a group of 5 students sitting in a circle with a copy of RONR could possibly come up with.

 

EDIT: Last clarifying question. What would be the best way to present the petition? It shouldn't be in the form of a resolution or legislation because it doesn't require a vote for the hearing to occur, simply the required number of signatures. My inclination is to present the overall removal as a single resolution, with a Whereas statement stating that a petition has been properly filed with [insert names] as signatories to the petition, and then attach the petition to the resolution. Thoughts?

[Josh Martin]

Based on my understanding of RONR and the above language, the introduction of the petition can happen without notification, from the floor, but must be presented in Executive Session. It's important to note that these meetings are all public, and members of the school press are [literally] always in attendance. Also, based on my understanding of the "Steps in a Fair Disciplinary Process" (RONR 11th, p. 656) this procedure, being written into the Constitution and superseding RONR, will skip Step 1 of the RONR steps (Confidential Investigation by a Committee) and proceed to the second part of Step 2 (Skipping the report of the committee, and the petition counting as "preferral of charges"). The body would then proceed with its own procedure, which mirrors that of RONR.

It is correct that your organization's rules supersede those in RONR, and nothing in your rules appears to require that any of this be done in executive session, although that's certainly a good idea.

Second, and potentially most important, are going to be questions about the Executive Session. I know upfront that having the hearing in Executive Session will upset a lot of people, namely the student press, but I see no way around it. Apart from being specifically ordered by RONR (our Constitution, Bylaws, and Operations Manual provide no clarification or alternative), it seems as though the accused could sue the university and the organization for defamation of character if it were not held in Executive Session. Furthermore, because we do have an independent Judicial Branch that oversees Constitutionality of the organization's actions, having the hearing in public would, having violated RONR and thus our Bylaws which gives credence to RONR in matters not specifically addresses, constitute a mistrial and would certainly lead to the Judicial Branch overturning the results of the hearing.

Again, since your Constitution has its own rules pertaining to discipline, those rules take precedence. Nothing in the disciplinary rules you have cited require the procedures to be conducted in executive session. The assembly may still choose to meet in executive session, and in my opinion, this would be a very good idea, and it would be best to amend the Constitution in the future so that there is no question on this subject. As you note, there may be potential legal ramifications if the meeting is not held in executive session.

However, and this is the important part, who constitutes a member during the Executive Session? It is important to point out that, according to the above citation from our Constitution, that the "The [Legislative Branch] shall try all cases..." But our Constitution also states that"

"Organization" referring to the entirety of the student government, meaning that every student is a member of its government, even if not elected to Executive Office, elected as a Legislator, or appointed in either the Judiciary or Executive Branches. Am I correct in assuming that this still does not give every student the right to attend the Executive Session?

Do you think it would be improper, if not allowing non-Legislator students to attend the hearing, to still allow members of the Executive and Judicial Branches to attend? (And several more questions on the same topic)

Yes, you are correct. Only members of the body that is meeting (the legislative branch) have the right to attend.

It's entirely proper for the assembly to permit whoever it wishes to attend. The assembly can indeed "pick and choose" which non-members may attend a meeting.

Would it be wrong to allow a single member of the student press into the Executive Session and allow them to report on the hearing, so long as no personal details are given (ex. they can report the number of witnesses called, the order of procedure that the hearing followed, the number of votes cast towards either side, that they feel the hearing was conducted in a fair and democratic way, but they wouldn't be able to report witness names, testimony, evidence details, discussion, votes about evidence, how certain members voted, questions asked, basically anything verbally stated, etc.)?

The assembly may do this if it wishes. As previously noted, it is in order to permit certain non-members, and not others, to attend the meeting. Everyone attending a meeting in Executive Session is bound by confidentiality, but the assembly may choose to lift confidentiality on certain topics if it wishes to do so. RONR would not recommend that even as much information as you suggest be disclosed, which we'll discuss more later.

Thirdly, this is going to be mostly opinion, but because we are a public university, the university does have the power to punish students internally. Following this system (assuming cooperation between the student government and "student punishment" office) would it be a violation of a member's rights if we used full-time faculty members with the "student punishment" office as assistance with keeping confidentiality. Ex: our Legislative Branch has a lot of members and we obviously don't want to violate our governing documents, or state/federal law, so on top of punishing a member with removal for violating the confidentiality of an Executive Session, would it be wrong to hand them over to the "student punishment" office for additional sanctions (ex. probation, suspension, monetary fine, etc.)?

The same rule applies to witnesses and honesty. Dishonesty to a university official, or official entity (committee, etc.) is punishable by University rules (aka, we have our own version of perjury). Would we be wrong of us to use this office to, at least through threat of punishment, compel honest testimony?

It violates no rule in RONR for a society to cooperate with other organizations which also intend to punish the individual.

Fourth, under RONR pg. 664 it seems to suggest that the body can determine on its own whether or not the accused is allowed to bring a lawyer, since the lawyer wouldn't be a member. Is my reading of that correct?

Yes.

Fifth, the procedural steps listed in RONR pg. 666-667 state that all questions from members of the body that are not managers must be submitted in writing, and pg. 664 also states that "the assembly may, by majority vote, adopt a resolution to govern the trial specifying details not inconsistent with the procedures described here." According to these passages, would it be a violation of RONR to pass a resolution allowing questions to be made verbally by members, if recognized by the chair? My inclination is that the answer is no.

No, it would not be in violation of RONR to adopt such a resolution, especially because your organization has its own disciplinary procedures which supersede RONR. Your assembly may certainly still use the trial procedures in RONR for guidance, but it is not required to follow them in every regard.

Sixth, because of the text in the Constitution (listed above), am I correct in assuming that the body would skip the determination of the penalty (RONR pg. 667-668) because the penalty is required to be removal?

Yes.

Seventh, am I correct in interpreting that the body gets to dictate Rules of Evidence? As opposed to a courtroom with a set list of what can or cannot be used, it's the chair that rules or the body that votes whether a certain piece of information should be allowed? I'm assuming the body has to remain consistent with their determination of what is allowed?

Yes, this is correct. Indeed, RONR specifically notes that, unlike in a courtroom trial, hearsay can be permissible. As for consistency, nothing in RONR requires the body to remain consistent, but it would seem to be a good idea. Inconsistencies would likely lead to allegations of unfairness.

Lastly, how much of this would it be appropriate to disclose? We can't disclose nothing simply because the student press would have a field day about governmental cover-ups. RONR allows us to disclose that the student was removed, but how far does that go? Can we say that they were removed for a violation of the governing documents? Once they're accused, but before the trial, can we say that they've been accused of misconduct? Can we say that they've been summoned to a hearing under [insert Constitution article], which would essentially be saying they've been accused of misconduct without actually saying they've been accused of misconduct. Because our governing documents list specific things that an officer can be removed for:

Are we allowed to say which of those reasons they were removed under? Would it be improper to "declassify" the petition and any resolutions passed during the Executive Session so that they can be disclosed to the public? Where is the line drawn that we shouldn't cross in terms of transparency vs privacy?

What RONR provides is that all that should be disclosed is the fact that the member was removed, and even this fact is to be disclosed only to the extent necessary to protect the organization or other similar organizations. The primary reason for this strict limitation is because disclosing more information may leave the organization open to a lawsuit. If your organization is considering disclosing more information, it would be best to seek legal counsel, as they can advise you of where the line is much better than I can. Perhaps the university can provide assistance in this regard.

EDIT: Last clarifying question. What would be the best way to present the petition? It shouldn't be in the form of a resolution or legislation because it doesn't require a vote for the hearing to occur, simply the required number of signatures. My inclination is to present the overall removal as a single resolution, with a Whereas statement stating that a petition has been properly filed with [insert names] as signatories to the petition, and then attach the petition to the resolution. Thoughts?

As you have noted, a resolution implies that a vote will be taken. I would just submit the petition itself, and then the chair may announce that a petition for removal for Member X, signed by seven legislators, has been received, and he can then describe the disciplinary process.

[HungryJack619]

That did help quite a bit.

 

My question about an Executive Session was simply because, our policies do not state anything other than that a hearing must take place, and RONR specifies rules on how a deliberative body should conduct a hearing. If the only policy that we have about the hearing is the one in the above post, simply stating the a hearing must occur, is that sufficient grounds for the procedures of the entire hearing to deviate from RONR?

 

Also, more basic questions. Our Constitution requires notification via certified, first-class mail. Can we dispense with that requirement if we had unanimous approval of the Legislative Branch?

 

Lastly, does an Executive Session include ex-officio members?

[Josh Martin]

My question about an Executive Session was simply because, our policies do not state anything other than that a hearing must take place, and RONR specifies rules on how a deliberative body should conduct a hearing. If the only policy that we have about the hearing is the one in the above post, simply stating the a hearing must occur, is that sufficient grounds for the procedures of the entire hearing to deviate from RONR?

This is ultimately a question of bylaws interpretation, but in my view, yes. With that said, making up trial procedures out of whole cloth isn't most people's idea of a good time, so using the rules in RONR as a starting point probably isn't a bad idea.

Our Constitution requires notification via certified, first-class mail. Can we dispense with that requirement if we had unanimous approval of the Legislative Branch?

No. Notice requirements may not be suspended, even by a unanimous vote.

Lastly, does an Executive Session include ex-officio members?

Yes. Ex-officio members have the same rights as other members.

[HungryJack619]

That second one was my own fault for not being more specific. Waiving the requirements of notification by first-class mail would be in favor of notification via another means (electronic, phone, face-to-face, etc.)

[Josh Martin]

That second one was my own fault for not being more specific. Waiving the requirements of notification by first-class mail would be in favor of notification via another means (electronic, phone, face-to-face, etc.)

The answer is still no. If your Constitution requires certified, first-class mail for notice, that's what you have to do. If you want to use a different means in the future, you'll need to amend your Constitution.