BabbsJohnson

was under the impression that someone like a hired vendor such as a manager, could only crrtain things if directed to do so by the board. 

4 minutes ago, Atul Kapur said:

Sincere question: How is this question different from what you have asked in other threads on this forum?

I guess I’d have to go back and read to know for sure.

 (deleted: redundancy)

I guess... never?

And with that logic, it would never override state law either, correct ?

5 hours ago, Richard Brown said:

I stand by my opinion that with the possible exception of an apology and paying restitution, additional "punishments" (other than censure, suspension,  expulsion and removal  from office) cannot be imposed unless authorized in the bylaws. 

When you say “expulsion”, do you mean the board itself can vote a board member out by a two-thirds vote, even if the by-laws specify a specific (and different) requirement for removing a board member from being a “board member”?

And furthermore...if RONR overrides the By-Laws, can they do such a thing without a trial?

1 hour ago, Chris Harrison said:

The question is under what authority does she or whoever imposed this "special rule" on you think they have the power to do so and make it stick?  I suspect that authority only exists in their own minds (though I could be wrong so you should do your research).  If that authority doesn't exist then it's up to you to decide whether this "special rule" should be obeyed. 

 Singling one member out and making a special rule for them that applies to something as important as communication with their board member peers,  seems like a kind of discrimination to me.

 As far as the bylaws are concerned, because I have read through them several times, and I can’t find anything in RONR that would allow this, it seems like that power cannot be created, to allow to make a special rule for just one member. 

12 minutes ago, Chris Harrison said:

As far as RONR is concerned the duty to keep what was discussed in Executive Session within Executive Session isn't waived just because what was discussed involved that particular member.   

 

Since you said this had "nothing to do with board jurisdiction, (nor an authorized executive session topic, as far as local laws go)" I would suggest you talk to a lawyer as to any legal implications but as for RONR see my above response.

State laws, I have been told, override anything in RONR.

So for instance.,, if a state law says that a board is only authorized to discuss, let’s say, five specific and well-defined topics, and is otherwise violating the law if they discussed anything else, then if “anything else” was discussed, it would be in violation of the law, and as far as the State is concerned is not considered protected or confidential information,  since it does not fit within the confines of the specifically authorized topics.

But of course I agree about the legal vs parliamentary thing.

10 minutes ago, Chris Harrison said:

Besides talking to everyone outside of a meeting (you have no obligation to talk to the President or anyone else for that matter) there is really no way to prevent the President from speaking in debate.  Granted, the President in order to remain impartial shouldn't be speaking in the first place but there is no way to actually prevent her from doing so if she is so inclined.  Also, if she is involved in your situation she should be turning the chair over to the Vice President and then she would be free to speak in debate as any other member.

We use small board rules, so she speak in debate, as well as gives long speeches before anyone else can talk, about how she feels about something, and also votes.

4 minutes ago, Chris Harrison said:

Besides talking to everyone outside of a meeting (you have no obligation to talk to the President or anyone else for that matter) there is really no way to prevent the President from speaking in debate.  Granted, the President in order to remain impartial shouldn't be speaking in the first place but there is no way to actually prevent her from doing so if she is so inclined.  Also, if she is involved in your situation she should be turning the chair over to the Vice President and then she would be free to speak in debate as any other member.

A special rule has been imposed on me that says all communication that I want to have with other board members, has to include her, if it’s email, which is how many communicate these days. I have no idea if this rule applies to other members.

i believe this is her way of controlling communication, as she can then privately tell the others not to respond, before any of them do.

Her goal, I think, is for me to have zero access to, and zero communication with, the other board members, outside of meetings, to the net effect of me having zero allies.

If a person is accused of something by another board member, or by a manager, or by an invited guest, during Executive Session, do they have the right to speak of it freely, since they were the one accused of some wrong?

Also: what if the accusation was untrue, and there was proof of this?

Also: if a person shares some personal detail about themselves in  some way during Executive Session, and it has nothing to do with board jurisdiction, (nor an authorized executive session topic, as far as local laws go), and someone else makes an indecourous comment about that person in response, (and it is not called out by the Chair, and the Chair, in fact, then joins in and makes several indecorous remarks about that person as well), is the person who the remarks were made about required to keep that exchange a secret, since it was in Executive Session?

9 hours ago, Guest LRB said:

If someone violates the executive session by talking about it in public, what kind of recourse is there?

Guest LRB, what your local “sunshine” or open meeting laws say about Executive Session and what is considered “confidential” information might be of importance as well.

If a typically open meeting topic is discussed in Executive Session, it might not be considered that which is required to be kept confidential. (That is not really about parliamentary procedure though, but what your state or local laws say).

Adding:

 It may really depend on what they spoke about.  Did they expose someone’s personal contact or address information, for example?  Someone’s financial information?  Details about a pending contract? Details about a pending lawsuit? Details about leins, foreclosures, or payment plans? This is the kind of information that many states list for HOA boards, for example, as what must be kept confidential that is spoken about in executive session.  Again... this has not much to do, if anything, with parliamentary rules, but with your local, or state laws.

Not all boards adhere to their local laws.

Activity that violates the law, and this is pure speculation, I’d guess (as a non-lawyer type person) would not be protected, or expected to be kept confidential.

(Might want to ask at a legal advice forum)

6 hours ago, Richard Brown said:

With possibly one exception, I think punishments are limited to those (censure, suspension, expulsion and removal from office) unless authorized in the bylaws. I think you are overlooking a key phrase in the language on page 643 about the punishments that can be imposed.  Here is the full quote from lines 12-15.  I have highlighted what I think is a key provision:  "Punishments that a society can impose generally fall under the headings of censure,* fine (if authorized in the bylaws), suspension, or expulsion. The extreme penalty that an organization or society can impose on a member is expulsion."

That provision makes clear to me that a fine cannot be imposed unless authorized in the bylaws.  It is clear and unambiguous.  I think the imposition of other forms of discipline which require any kind of affirmative action on the part of the member being disciplined would be prohibited unless authorized in the bylaws because it would require something more to remain a member than is required by the bylaws.  Being ordered to walk up and down Main Street wearing a sandwich sign that says "I said something that embarrassed the Main Street Men's Club" would be prohibited because the society has no authority, under the bylaws, to require the wearing of a sandwich sign by a member as a condition  of membership.  It is the same rationale used when RONR says specifically that a fine (or a special assessment) cannot be required unless authorized in the bylaws.  To permit it would be to permit the society to require more from some members (without authorization) than other members.  The bylaws define and limit a member's  liability to the society.

The one possible exception MIGHT be in the way of an apology.  RONR says, on page 647 on lines 14-20 that for an offense  committed in a meeting an apology can be ordered. Here is the complete statement:  " The case may be sufficiently resolved by an apology or a withdrawal of objectionable statements or remarks by the offender; but if not, any member can move to order a penalty, or the chair can first ask, "What penalty shall be imposed on the member?" A motion offered in a case of this kind can propose, for example, that the offender be required to make an apology, that he be censured, that he be required to leave the hall during the remainder of the meeting or until he is prepared to apologize, that his rights of membership be suspended for a time, or that he be expelled from the organization."   I question whether an apology could actually be ordered unless authorized in the bylaws, but it is what the book says.

Another troubling  passage in the book is on page 668 regarding requiring an accused officer to repay funds wrongfully misappropriated  from the society.  Here is the full  statement:  "The usual possible penalties for an officer are censure or removal from office, although in special circumstances others may be appropriate (for example, to repay into the society's treasury funds that the officer has been found guilty of misappropriating, perhaps with an added fine). For all of these, including removal from office, a majority vote is required. Penalties appropriate in disciplinary proceedings against members are discussed on page 643. For expulsion, a two-thirds vote is required."

Two comments about the foregoing provision:  First, I think that, based on other provisions in RONR, it should be clear that a fine cannot be imposed unless authorized in the bylaws.  The  prohibition against fines unless authorized in the bylaws on page 643 is clear and unambiguous. The second point has to do with ordering the repayment of misappropriated funds.  I acknowledge that is what the book says and it seems appropriate, but I question whether the society actually has the power to order repayment.  Perhaps.   It certainly does not have the power to impose it in the sense that a court could order it, but perhaps it can be ordered as a condition of continued membership.

The bottom line is that, for all practical purposes, the only punishments that a society can impose on members without specific authorization in the bylaws is censure, suspension, expulsion, removal from office, and possibly the requirement of an apology and repayment of misappropriated funds.  I think it is clear that a fine or assessment cannot be imposed unless authorized in the bylaws.

When you say “expulsion”, that must be limited by what the by-laws say, correct?

If the by-laws, for instance, say nothing of “expulsion from the membership” as an option, and that the only way to “expel” someone (let’s say a board member from an HOA board) is to use the guidelines to remove them by a vote of the membership (the homeowners) then that is the only “expulsion” possible, correct?

In presenting a matter to an assembly, is it ever available to the presenter for them to ask to hear from the assembly first, before the Chair?

7 hours ago, Josh Martin said:

For starters, do your bylaws have their own disciplinary procedures? If so, what do they say? If not, is this concerning a member of the society or of the board? If the latter, what do the bylaws say regarding the term of office?

If your bylaws are silent, and a trial is required. then yes, a motion (several motions, actually) will be needed.

If the bylaws are silent regarding discipline, see RONR, 11th ed., pgs. 656-669.

Under the disciplinary procedures in RONR, a trial is also required for actions taken at a previous meeting. It is only when action is being taken against a member for actions taken in the current meeting where abbreviated procedures (discussed on pgs. 644-648) are permitted.

”In addition, even when improper conduct occurs at a meeting, in order for disciplinary action to be taken other than promptly after the breach occurs, charges must be preferred and a formal trial held. However, the only way in which a member may be disciplined for words spoken in debate is through the procedure described on pages 645–48, which may be employed only promptly after the breach occurs.” (RONR, 11th ed., pg. 649)

I assume the “you snooze, you lose” rule is not applicable in cases where the words were spoken in a board or committee meeting, given that those bodies have very limited power to discipline their own members under RONR.

I must stress again, however, that if your bylaws have their own rules on discipline, those rules take precedence.

No Bylaws mention on discipline. Removing a board member or the whole board by the vote of the membership is the only thing mentioned.

RONR is our adopted Parliamentary Rules.

Is the only way to get a trial going is through a motion?

Can anyone elaborate on how, in an HOA membership and board, what role does the membership play in:

1. Getting the trial initiated

2. The trial itself

Also: does a trial always require actions that happen outside of a meeting? Some things happened at a recent meeting I was not at. Several actions were taken against me, I believe in retaliation.

11 hours ago, Josh Martin said:

As a parliamentary matter, there is nothing preventing the lawyer from asking questions (although this will require the board’s permission). Similarly, however, there is nothing requiring the member to answer the questions.

The board likely does not have the power to discipline its own members at all unless the bylaws so provide. If the bylaws contain their own rules for discipline, those rules are controlling. Those rules may or may not require a trial, notice, or the presence of the accused. It may be helpful if the language concerning discipline in the bylaws is provided. RONR has its own rules on this subject, but the bylaws supersede RONR.

There is nothing, as a general rule, which prohibits the board from placing a member on the agenda and discussing the member while the member is not present.

If the By-Laws do not give allowances for any kind of in-meeting discipline, or anything outside of what seems to be the standard way that HOA boards can remove a director, woudn't talking about a member at all, if the remarks were not part of a motion to censure, be considered "personal remarks" and not be allowed?

45 minutes ago, Josh Martin said:

As a parliamentary matter, there is nothing preventing the lawyer from asking questions (although this will require the board’s permission). Similarly, however, there is nothing requiring the member to answer the questions.

The board likely does not have the power to discipline its own members at all unless the bylaws so provide. If the bylaws contain their own rules for discipline, those rules are controlling. Those rules may or may not require a trial, notice, or the presence of the accused. It may be helpful if the language concerning discipline in the bylaws is provided. RONR has its own rules on this subject, but the bylaws supersede RONR.

There is nothing, as a general rule, which prohibits the board from placing a member on the agenda and discussing the member while the member is not present.

The by-laws are silent regarding discipline, outside of guidelines for removing a board member, or the entire board, both which would require a vote of the membership.

Can a board subject a member to questioning by the association lawyer or to a discussion during a meeting regarding that member as if they were on trial, only without moving for a trial?

Can the board act as if a trial is happening and decide on some kind of disciplinary action without notifying the member the way one would be notified if the membership moved to behind a trial? Can you do this in the absence of the member?

Put that member on the agenda and discuss them while they are not there?

On 8/5/2019 at 9:21 PM, Alexis Hunt said:

In the larger corporate world, it is almost a matter of course that all but the most significant decisions of the organization are delegated to officers (and subsequently redelegated down the management chain). My first read of the original post is not that this is a large corporation, but I merely wish to point out that, in some contexts, this practice is far from unusual and indeed the norm.

Having looked again at the original post and noticed who the author is, and having regard to their history here, I do not believe that there is any further advice I can give them other than to engage an attorney of their own.

It is not a large corporation. It is an HOA.

1 hour ago, Joshua Katz said:

Because I can't tell from what was said, I'll just note that (if I am wrong Mr. Martin will correct me) this is true only if it takes place during a meeting, since the rules of decorum regulate conduct at meetings.

Yes, it took place during a meeting, and the president fully participated in the conversation, instead of stopping it.

To me, it seems like an overreaction to me simply telling the manager I didn’t appreciate her asking the lawyer in front of everyone if a condition I disclosed I had  (cptsd), as part of an apology for breaking down in tears at a recent meeting, could get me removed from the board, (he said yes, if they could prove I was unfit to serve) then went on to continue a casual conversation with the president and the rest of the board about my mental health, in what turned out to be highly probable was an illegal meeting..

It was extremely improper, and highly humiliating, and offensive to me.

Nothing in our bylaws says anything about the board being able to make those kinds of rules about board members, or a single board member.

31 minutes ago, Josh Martin said:

In my view, no rule in RONR prohibits a board from adopting a rule of this nature. Members do not have a parliamentary right to email other board members or management. As a consequence, adopting a rule concerning the sending of emails, even if for only one person, is not “discipline.”

So... would it have to be an officially adopted rule, meaning through a motion at a meeting?

Something that would be in the minutes?

I am expecting a "This isn't covered by RONR" response from someone, but all this detail leads to a valid question at the end.

I supposed if you don't' want to know the details,  the TL;DR for this would be: Can a board implement disciplinary measures that are not offered by RONR or the By-Laws? Meaning, can they make up disciplinary rules or methods either for the entire board and/or individual board members?

I received a letter from the Association lawyer, that if I wish to email management, or any other board member, that I have to copy the president as well.

I thought that censure, removal from officer positions, removal from committees (and in extreme cases, a recall) was the only means of discipline we have available, if RONR is adopted, and by-laws are silent. 

There is nothing in our by-laws that states anything about discipline, yet both the (unknown contents of the) conversation that prompted the letter, and the letter itself, as well as what the letter asks of me, seems like disciplinary action that is beyond their means to take. It at least seems like intimidation. There is no reason the president couldn't have emailed me, or brought this up as a censure, or something like that. A legal letter costs money. It had to get approved. 

3 hours ago, Guest Zev said:

No, no levels. Whether some are worse than others is a judgment call that the assembly can make. If someone said anything like what you indicated then why did you not raise a Point Of Order and request the chairman put an end to this?

The chair was participating in the conversation as well., and also saying insensitive things.

i was also a bit shocked as it was happening. 

Not long ago, while in a meeting, a manager made an extremely rude, humiliating and embarrassing comment which damaged my image in front of my peers.and also demonstrated a callous disregard for a crippling disability, 

The President did not call her to order, but instead joined in the conversation. 

Later, I told the manager I thought she was mean, tactless, and inappropriate, and that I’d never forget that she did that, which I’m sure was a breach of decorum.

Are there “levels” to breaches of decorum? Are some worse than others?