RONR ignored in disciplinary matter. Now what?

[Guest Rich F]

Gentlemen/Ladies:

I need help resolving a disciplinary matter in which RONR was ignored.

Our organization (hereinafter “SRC”) By Laws give the Board of Trustees the power to “…revoke membership of any club member whose conduct is unbecoming to the welfare of the club, by a two-thirds vote of the Board. Written notice of the Board action will be mailed by signature-requested mail within 48 hours to the accused and accuser. The accused has the right of appeal using the following process. Within ten days of receiving written notice of termination the accused will meet with the Executive Committee of the Board, set at a mutually agreed time and place. After this meeting the Board, excluding the accused and the accuser will have five days to reach a decision. A simple majority shall prevail. Failure to follow above procedure will terminate any further appeals. The accused may then appeal to the membership the decision of the Committee within ten days, at which time a membership meeting will be called at a mutually agreed time and place. A simple majority will prevail. This decision will by final.”

The By Laws also contain the following text: “The rules contained in Robert's Rules of Order, latest revised edition, shall govern this club in all cases in which they are applicable, and in which they are not inconsistent with these Bylaws, Articles of Incorporation, of any other adopted rules of the SRC.” No text in the By Laws instructs the Board to follow any particular procedure in such matters, there are no “adopted rules” that pertain to these matters, and Robert’s is not inconsistent with any other relevant provisions of the Articles of Incorporation or the By Laws.

The accused in this matter was not notified of the Board’s deliberations. Rather, his first knowledge of the disciplinary matter was the receipt of a letter from the SRC President in which the accused was told that the Board had met in Executive Session and determined that the accused’s membership was revoked for a period of five years. Clearly, RONR Section XX was wholly ignored. To confirm: The accused was never given notice of the proceedings, was not permitted to attend the proceedings, and was not given the opportunity to defend himself. All other provisions of Section XX were also ignored.

The question is how to handle a Board decision that failed to meet the requirements of RONR, and in which the accused was denied the rights of due process and his right to a “fair” hearing under RONR’s governance.

Should the Board’s decision stand even though the accused was not given due process and the right to defend himself? Should the Board’s decision be vacated? Should the accused be subject to a new trial, notwithstanding 1) the common sense prohibition against double jeopardy and 2) the fact that the Board has already made a decision and changing their votes now requires each Board Member to acknowledge that he was wrong the first time around – an admission that no human makes easily. Should the By Laws be ignored by skipping past the Board and the Executive Committee and having the whole matter tried before the membership (this is likely to be messy and very divisive to the club) leaving no option for an appeal?

I’m trying to find a compromise that can work and I need help! Any comments you have will be helpful.

Rich F

[Tim Wynn]

Your bylaws seem to cover it all, and that leaves RONR out. Unlike the great parliamentary minds on this site (and Nancy N.), RONR holds to the assumption that an organization's bylaws are a competent and intentional depiction of the will of the membership. Chapter XX plays no role in any area in which it conflicts with the bylaws... which it seems to do from your posting of bylaw excerpts.

It also appears that there are two appeal options open to the former member, and it further appears that the board acted within its powers (once again, according to the excerpts that you posted). However, it's up to the organization to decide the meaning of its bylaws. See RONR(10th ed.), p. 570 - 573 for Some Principles of Interpretation.

[tctheatc]

...revoke membership of any club member whose conduct is unbecoming to the welfare of the club, by a two-thirds vote of the Board. Written notice of the Board action will be mailed by signature-requested mail within 48 hours to the accused and accuser.

written notice of the board action seems to be what's required of the board, and what they sent him. They appear to be following the rules you mention.

seems now he has the right to meet with them, after which they vote again. I have a sneaking suspicion the vote will be similar to the first. But if the accused fails to take advantage of his appeal process it sounds like he's out of luck:

Within ten days of receiving written notice of termination the accused will meet with the Executive Committee of the Board, set at a mutually agreed time and place. After this meeting the Board, excluding the accused and the accuser will have five days to reach a decision. A simple majority shall prevail. Failure to follow above procedure will terminate any further appeals

then again, it appears there's another appeal after the final one!

The accused may then appeal to the membership the decision of the Committee within ten days, at which time a membership meeting will be called at a mutually agreed time and place. A simple majority will prevail. This decision will by final.

Sorry, but other than the accuser maybe passing on his right to appeal, I don't see anything wrong. Your bylaws supersede RONR and it looks like the board is following the bylaws

[Gary Novosielski]

The By Laws also contain the following text: “The rules contained in Robert's Rules of Order, latest revised edition, shall govern this club in all cases in which they are applicable, and in which they are not inconsistent with these Bylaws, Articles of Incorporation, of any other adopted rules of the SRC.” No text in the By Laws instructs the Board to follow any particular procedure in such matters, there are no “adopted rules” that pertain to these matters, and Robert’s is not inconsistent with any other relevant provisions of the Articles of Incorporation or the By Laws.

But you quoted your bylaws as saying that the board may vote by 2/3 to terminate and thereafter notify the accused, who has the right of appeal, and so on. Those clearly define a "particular procedure in such matters." Furthermore, as the rules in RONR are inconsistent with those in your bylaws, the discipline rules in RONR do not govern your club in this case.

Any rules in your bylaws supersede those in RONR.

[Guest Rich F]

I'm a bit confused. The By Laws give the Board the authority to judge, but do not specify the procedures or methods by which such judgment is rendered. RONR Section XX is quite specific in the procedures and methods to be used. Because the By Laws a mute on such procedures, wouldn't RONR then be the controlling text on such procedures. Again, the question is not whether the Board has the authority to judge (everyone involved agrees that the Board has such right), but whether it can judge without giving the accused the due process RONR requires.

[Gary Novosielski]

I'm a bit confused. The By Laws give the Board the authority to judge, but do not specify the procedures or methods by which such judgment is rendered. RONR Section XX is quite specific in the procedures and methods to be used. Because the By Laws a mute on such procedures, wouldn't RONR then be the controlling text on such procedures. Again, the question is not whether the Board has the authority to judge (everyone involved agrees that the Board has such right), but whether it can judge without giving the accused the due process RONR requires.

RONR Chapter XX only applies in cases in which it is not inconsistent with your bylaws.

Your bylaws appear to allow the Board, by a 2/3 vote (presumably with some debate), to vote someone out for whatever reasons they like, or no reason at all whenever they consider his conduct unbecoming, with no procedures or methods specified to support their decision. At least you didn't quote any. So, your bylaws make it extremely easy to vote someone out.

RONR may require due process, but nothing you quoted in your bylaws appears to require it, at least until AFTER the board has voted. Since that's not the way it's done in RONR, your bylaws take precedence.

The only time Chapter XX would apply is if your bylaws said nothing at all about removing members, or if they referenced the procedures in Ch. XX with some specifically noted exceptions. But if they just say the board can vote someone out, with no mention of additional process, then that is assumed to be the sum total of your discipline procedures.

I wouldn't necessarily like it any better than you do, but that's what it appears to say in your bylaws. However, since I am not a member I am not entitled to an opinion on the matter.

[Tim Wynn]

I'm a bit confused. The By Laws give the Board the authority to judge, but do not specify the procedures or methods by which such judgment is rendered.

Going off your bylaw excerpt (which is always dangerous), the process is covered in its entirety.

“…revoke membership of any club member whose conduct is unbecoming to the welfare of the club, by a two-thirds vote of the Board.

[Gary c Tesser]

Hold on a moment, please, men. (I'm particularly addressing Mr Novosielski and Mr Wynn, because they're so hard to type.) I see your argument (and raise you), but do you not see OP Rich F's?

Consider. Suppose, for its deliberations on the question of revoking that membership by a 2/3 vote, the board wants to use the Chapter Twenty procedures (specifically, p. 629 - 641). Can't they? Is that really inconsistent with the skeletal procedure in the bylaws? I don't think so; do you?

If you agree, then, then isn't it so that the bylaws' requirement to follow RONR where RONR is not inconsistent with the bylaws, dictates that Chapter Twenty be complied with?

[Tim Wynn]

Hold on a moment, please, men. (I'm particularly addressing Mr Novosielski and Mr Wynn, because they're so hard to type.) I see your argument (and raise you), but do you not see OP Rich F's?

Consider. Suppose, for its deliberations on the question of revoking that membership by a 2/3 vote, the board wants to use the Chapter Twenty procedures (specifically, p. 629 - 641). Can't they? Is that really inconsistent with the skeletal procedure in the bylaws? I don't think so; do you?

If you agree, then, then isn't it so that the bylaws' requirement to follow RONR where RONR is not inconsistent with the bylaws, dictates that Chapter Twenty be complied with?

I did consider that, and I offer the following:

Bylaws say "These bylaws may be amended at any regular meeting by a two-thirds vote."

1. If the assembly wants to follow RONR and give notice, that's not out of order.

2. So, Some c Person could argue that RONR's process is not inconsistent with the bylaws.

3. Further, it could be argued that, since it's not inconsistent, RONR must be followed, and notice must be given.

Unfortunately, that's just wrong. According to the tiny snip of bylaws that Rich F posted, the board can terminate a membership by a two-thirds vote. How does RONR bully its way into the mix and add requirements (e.g. with notice, after a trial, only on Sunday)?

[Gary c Tesser]

I did consider that, and I offer the following:

Bylaws say "These bylaws may be amended at any regular meeting by a two-thirds vote."

1. If the assembly wants to follow RONR and give notice, that's not out of order.

2. So, Some c Person could argue that RONR's process is not inconsistent with the bylaws.

3. Further, it could be argued that, since it's not inconsistent, RONR must be followed, and notice must be given.

Unfortunately, that's just wrong. According to the tiny snip of bylaws that Rich F posted, the board can terminate a membership by a two-thirds vote. How does RONR bully its way into the mix and add requirements (e.g. with notice, after a trial, only on Sunday)?

I don't see how the flaw in the bylaws example applies to the discipline case. In the bylaws example, RONR says, adopt a bylaws procedure and follow it -- but if you don't have one, do this. The choices are exclusive, not combinative. In contrast, I don't think that is what p. 631 - 2 means; do you?

(Is there a logician in the house? Or a weatherman?)

[Dan Honemann]

I don't see how the flaw in the bylaws example applies to the discipline case. In the bylaws example, RONR says, adopt a bylaws procedure and follow it -- but if you don't have one, do this. The choices are exclusive, not combinative. In contrast, I don't think that is what p. 631 - 2 means; do you?

(Is there a logician in the house? Or a weatherman?)

Give it up, Mr. Tesser; you're simply muddying the waters.

[Tim Wynn]

Give it up, Mr. Tesser; you're simply muddying the waters.

That will only encourage him.

... and others like him (guest_Gary_c_Tesser, for example.)

[Gary Novosielski]

Hold on a moment, please, men. (I'm particularly addressing Mr Novosielski and Mr Wynn, because they're so hard to type.) I see your argument (and raise you), but do you not see OP Rich F's?

Consider. Suppose, for its deliberations on the question of revoking that membership by a 2/3 vote, the board wants to use the Chapter Twenty procedures (specifically, p. 629 - 641). Can't they? Is that really inconsistent with the skeletal procedure in the bylaws? I don't think so; do you?

If you agree, then, then isn't it so that the bylaws' requirement to follow RONR where RONR is not inconsistent with the bylaws, dictates that Chapter Twenty be complied with?

No. I don't agree.

Your argument appears to say that because (presuming for argument's sake) the board might choose to follow Ch XX if it wanted to, it must therefore follow Ch. XX even if it doesn't want to. And that would be inconsistent with the authority in the bylaws to revoke membership by a 2/3 vote. Therefore, Ch XX does not govern the club with respect to expelling members.

[Gary c Tesser]

No. I don't agree.

Your argument appears to say ... [snip]

No, that wasn't my argument, but I"m not going into it because I've already been accused of aggravated hydroturbidity once in this thread, and by my surname and surtitle yet, and that's enough.

[Guest Rich F]

Thank you gentlemen, your thoughts have clarified things a bit. I still don't have a compromise that I think both sides will accept, but you have been able to focus me away from an unproductive line of reasoning. Thanks