Who is Constrained by Executive Session?

[JayW]

We recently had a member suspended after a disciplinary hearing was conducted by the Board, held in executive session (properly done, no questions there). The Board additionally recommended expulsion of the member, which must be voted on by the general membership. Per the bylaws, at the meeting where that vote takes place, "no evidence shall be presented or considered", although the defendant may speak on his own behalf. The president will present the charges, findings, and Board recommendation at the membership meeting, but not the actual evidence. Members are, of course, reluctant to vote to expel someone from the club without having all of the facts in front of them.

 

One option is for the membership to vote to have the minutes of the executive session read at the meeting, before the vote for expulsion comes up. It is debatable whether the Board is subordinate to the membership (long, different, story) so that may or may not bring the facts to light.

 

The question, though, is who exactly is subject to the rule of secrecy surrounding the executive session? This was a Board meeting, so the Board members cannot discuss it except with other Board members -- but what about the accused, the accuser, and the witnesses who were present at the hearing, but are not members of the Board? Are they free to discuss the hearing, present their evidence to the general membership (outside of the meeting), etc., or are they also required to keep things secret? (Not that there's much to stop them, really -- they're not members of the Board and some of them aren't members of the Club at all, so there's little discipinary action to take and at this point we're not in a legal situation.)

 

Thanks, as always, for any insight!

[Josh Martin]

The question, though, is who exactly is subject to the rule of secrecy surrounding the executive session? This was a Board meeting, so the Board members cannot discuss it except with other Board members -- but what about the accused, the accuser, and the witnesses who were present at the hearing, but are not members of the Board? Are they free to discuss the hearing, present their evidence to the general membership (outside of the meeting), etc., or are they also required to keep things secret? (Not that there's much to stop them, really -- they're not members of the Board and some of them aren't members of the Club at all, so there's little discipinary action to take and at this point we're not in a legal situation.)

 

Members of the society are certainly bound by the executive session and can be disciplined for violating it. Others who are present are "honor-bound" not to disclose anything, but as you note, there's not much you can do about them from a parliamentary perspective. See RONR, 11th ed., pg. 96, lines 6-9.

 

Your society may wish to consider amending the bylaws to remove this rule. As you say, members may be uncomfortable voting on the issue if they cannot be presented with any evidence.

[JayW]

Thanks, Josh! I'll check the citation when I get home (somehow these questions always seem to come up when I'm not there. I need to just take RONR with me wherever I go, I guess!)

 

I'm sure that a revision to the bylaws will be proposed now that people realize what they say, although the way our process works there's probably not enough time for the change to occur before the expulsion vote, unfortunately.

[Chris Harrison]

I'm sure that a revision to the bylaws will be proposed now that people realize what they say, although the way our process works there's probably not enough time for the change to occur before the expulsion vote, unfortunately.

Under your current rules would it be possible for the General Membership to postpone the consideration of the expulsion to the next session/meeting of the GM? However, be aware that something can only be postponed to the next session so you might have to postpone it several times in order to amend the bylaws first to get rid of the "no evidence" rule).

[Guest JasonH]

...

 

Your society may wish to consider amending the bylaws to remove this rule. ...

 

Any chance that the rule "no evidence shall be presented or considered" can be suspended, as being in the nature of a rule of order?

[Josh Martin]

Any chance that the rule "no evidence shall be presented or considered" can be suspended, as being in the nature of a rule of order?

 

I think you could reasonably argue that it is in the nature of a rule of order, but it seems highly likely that the rule is intended to protect the rights of an invidual member (the accused), and therefore, it can't be suspended anyway.

 

This may have been a somewhat misguided way to protect the rights of the accused, as the meeting of the general membership must also be held in executive session, but all the same, I don't think you can suspend it.

 

(Since this may not be a "basic right" of an individual member, you may be able to suspend it with the consent of the accused, but since it would seem to be to his advantage not to disclose the evidence against him, I doubt such consent would be forthcoming.)

[Guest Edgar]

Any chance that the rule "no evidence shall be presented or considered" can be suspended, as being in the nature of a rule of order?

 

It has to be clearly in the nature of a rule of order and the fact that you're asking if there's "any chance" suggests that it's not clear at all.

[Guest JasonH]

It has to be clearly in the nature of a rule of order and the fact that you're asking if there's "any chance" suggests that it's not clear at all.

 

Nah, that's just my deference to the august oozing all over...

[JayW]

Under your current rules would it be possible for the General Membership to postpone the consideration of the expulsion to the next session/meeting of the GM?

 

 

Not sure. The bylaws state, "Expulsion of a member from the ... Club may be accomplished only at the Annual Membership Meeting of the Club following a hearing and upon the recommendation of the Board of Directors".

[Josh Martin]

Not sure. The bylaws state, "Expulsion of a member from the ... Club may be accomplished only at the Annual Membership Meeting of the Club following a hearing and upon the recommendation of the Board of Directors".

 

Based upon these facts, I don't think postponing it to the next session will be an option.

[Guest JasonH]

... The Board additionally recommended expulsion of the member, which must be voted on by the general membership. ...

I have, if you don't mind, an idle question for a quiet Thanksgiving Eve, what is your requirement for expulsion, majority vote, 2/3, 3/4, or ...?

[JayW]

Funny story, I was searching the archives for a different question about executive sessions and, seeing only the title of this thread, thought "Oh, that sounds like an interesting discussion" before I even realized it was my own topic. (Which, I'll admit, is less interesting than it sounded!)

 

At any rate, I missed the last 'idle question', and while I'm hesitant to dredge up an old post I did want to respond that the requirement for expulsion is a 2/3 vote of the members present and voting.

 

As an update, the Board offered to make the evidence from the trial available to the membership prior to the meeting. The person bringing the charges agreed and her 90+ pages of complaint and evidence were published by the Board. The accused declined, however some time later (still before the meeting) they set up a public website which presented their defense and evidence.

 

The end result is that the charges were upheld and the members were expelled from the Club.