Penalty in disciplinary action

[J. J.]

After the accused is found guilty after trial. There is the motion to set a penalty.

1. Is that motion a main motion?

2. Assume the motion is "That the penalty be censure." Is it in order to move to strike out "censure" and insert "commendation?" If not, why not?

[Josh Martin]

1. Is that motion a main motion?

Yes. It falls under the category of a question of privilege. (RONR, 11th ed., pg. 227, lines 16-22; pg. 225, lines 8-25)

2. Assume the motion is "That the penalty be censure." Is it in order to move to strike out "censure" and insert "commendation?" If not, why not?

No, as this is not one of the penalties a society may impose. (RONR, 11th ed., pg. 643, lines 12-14) The assembly could accomplish this object by declining to impose a penalty and then adopting a motion "To commend Mr. X for..."

[J. J.]

To do a followup, and one I hope will be brief:

The motion, "That the penalty be censure," is a(n incidental) main motion.

1. On what ground would the motion to strike out "censure" and insert "commend" be out of order? (I would think it would not be germain in the circumstance).

2. The members decide that they don't wish to inflict a penalty; can the adopt Postpone Indefinitely, as there are no amendments pending?

A second general question: The members are divided on both guilt and penalty in this example. 1/3 will not vote for any penalty. 1/3 will only vote for expusion, and no other punishment. The expulsion group tries to strike out "censure" and insert "expulsion," which fails by a 2/3 vote. There are no further amendments and the vote is 1/3 in favor of the "That the penalty be censure," and 2/3 against. No one moves to Reconsider.

Is that the final judgment? Is the accused called back into the room, told that he was found guilty, but the assembly could not agree to a penalty?

[Josh Martin]

1. On what ground would the motion to strike out "censure" and insert "commend" be out of order? (I would think it would not be germain in the circumstance).

A commendation is not one of the penalties an assembly may impose. (RONR, 11th ed., pg. 643, lines 12-14)

2. The members decide that they don't wish to inflict a penalty; can the adopt Postpone Indefinitely, as there are no amendments pending?

Yes, although in most cases I would question the advisability of doing so.

Is that the final judgment?

Yes.

Is the accused called back into the room, told that he was found guilty, but the assembly could not agree to a penalty?

Yes. So far as I can tell, an assembly is not required to impose a penalty on a member who has been found guilty. Thus, the usual rules apply. A majority vote is required for adoption (except for expulsion) and if the motion is not adopted, the assembly has not imposed any penalty.

[J. J.]

A commendation is not one of the penalties an assembly may impose. (RONR, 11th ed., pg. 643, lines 12-14)

But a motion to censure can be be amended in a motion to commend (p. 125, l. 19-20). I'm trying to figure what ground could be used to claim this amendment are out of order.

Let me add a question on this point. The assembly does not like the "censure." The insert the word "denouncement" or "condemn," or "reprimand." Are those in order.

[Josh Martin]

But a motion to censure can be be amended in a motion to commend (p. 125, l. 19-20). I'm trying to figure what ground could be used to claim this amendment are out of order.

Yes, in the general case, a motion to censure can be amended into a motion to commend. In the case where the motion is to impose a penalty after a member has been found guilty, however, this is improper. As you suggested, I think it could be argued that in this instance, the amendment is not germane as it is not related to the question of determining the penalty, as opposed to the general case where the question is the assembly's opinion of the member's action (positive or otherwise) (RONR, 11th ed., pg. 136, lines 5-9; pg. 137, lines 20-25). I think one could also argue that a motion "That the penalty be commendation" is out of order on the grounds that it is absurd, since presumably a member would not consider a commendation from his society to be a penalty, and an amendment to change the penalty to commendation would be equally absurd (RONR, 11th ed., pg. 342, lines 19-21).

Let me add a question on this point. The assembly does not like the "censure." The insert the word "denouncement" or "condemn," or "reprimand." Are those in order.

Yes, this is perfectly fine. Censure, whether it is used as a penalty or otherwise, is an expression of the assembly's disapproval. It does not necessarily have to use the word "censure" - a similar term may be used, such as those that you have mentioned.

[J. J.]

So far, I'm not in any real disagreement with any of your posts. This process is just to determine if my thought process is valid. You are being exceptionally helpful. Thank you.

I'll post another more specific question on another thread.