Vote valid? Confidentiality Breached?

[Guest T_Raison]

A board member of a non-profit organization (7 on the board) is being accused of breaking confidentiality. Members of the organization brought a complaint against another member. The entire board voted to not talk to one of the people involved in the dispute, (I'll call this person "A") and took the word of the members who brought forth the complaint, and issued a sanction.

 

One Board member asked "A" to confirm a portion of the story the members put in the complaint. "A" confirmed that it was not true. Because of this information, the board was forced to reduce the sanction and was angry at the board member for talking to "A" when they voted not to.

 

1. Did the board member breach confidentiality?

 

Because of the above incident, the board decided to sanction the board member. They held a regular meeting that only 4 of the board members attended, and did not tell the board member in question that they were discussing anything about the incident above or that they were going to discuss disciplinary action. Nothing was in the Agenda. The board member could not attend the meeting and had no chance to offer a defense. They did not publish the number of votes and only stated a "majority" voted in favor of the disciplinary action.

 

2. Does the Board member have a right to see the closed minutes from the Board meeting?

 

The meeting minutes noted that 4 people were in attendance (the chair and 3 others) and one was available by text/phone as needed.

 

3. If the vote included a vote by the person on the phone, the vote is invalid, correct? The bylaws do not state any information about attending meetings electronically. In the past the board has accepted votes by phone and states they have precedence, but wouldn't that mean that every vote that included a phone in vote was also invalid since the bylaws do not include anything?

 

4. If the Board also had private email communications about this, does that affect anything? If any of the board not present voted by email, is that invalid?

 

The board is holding elections and voted during that same meeting to post publicly a portion of the minutes from the closed session that outlines the disciplinary action for the board member. 3 days before the election period opened. The board member is preparing a defense.

 

5. Is there any recourse the board member can take?

 

I apologize for so many questions.

[Josh Martin]

A board member of a non-profit organization (7 on the board) is being accused of breaking confidentiality. Members of the organization brought a complaint against another member. The entire board voted to not talk to one of the people involved in the dispute, (I'll call this person "A") and took the word of the members who brought forth the complaint, and issued a sanction.

 

One Board member asked "A" to confirm a portion of the story the members put in the complaint. "A" confirmed that it was not true. Because of this information, the board was forced to reduce the sanction and was angry at the board member for talking to "A" when they voted not to.

 

1. Did the board member breach confidentiality?

 

That would appear to be the case.

 

2. Does the Board member have a right to see the closed minutes from the Board meeting?

 

Yes.

 

3. If the vote included a vote by the person on the phone, the vote is invalid, correct?

 

If the vote could have affected the result, yes.

 

In the past the board has accepted votes by phone and states they have precedence, but wouldn't that mean that every vote that included a phone in vote was also invalid since the bylaws do not include anything?

 

Not quite - only votes where the votes cast by phone could have affected the result would be invalid. The board can also ratify some or all of those votes if it wishes.

 

4. If the Board also had private email communications about this, does that affect anything?

 

No.

 

If any of the board not present voted by email, is that invalid?

 

If the vote could have affected the result, yes.

 

5. Is there any recourse the board member can take?

 

He may raise a Point of Order that the action taken by the board is null and void and follow that with an Appeal if necessary (which I imagine it will be). A majority vote is required to overturn the chair's ruling. It seems unlikely that the board will be receptive to the board member's complaints, so it would likely be preferable to do this at a meeting of the general membership.

 

I'd note that in addition to the phone and e-mail votes, there may be other reasons the vote would be invalid.

 

• You say the board member could not attend. What do you mean by this? Was he prevented from attending?
• What action was taken? Is the board authorized to discipline board members?
• You seem to have customized disciplinary procedures. Do those rules require that the accused be notified and have a chance to defend himself?
• Was the board member not informed of the meeting, or just not informed of the disciplinary proceedings to come up at the meeting?

[Guest T_Raison]

You say the board member could not attend. What do you mean by this? Was he prevented from attending?

• No, the board member was travelling out of town for the holidays.

 

 

What action was taken? Is the board authorized to discipline board members?

• The board has it in the bylaws that a board member can be disciplined in certain ways.
   

You seem to have customized disciplinary procedures. Do those rules require that the accused be notified and have a chance to defend himself?

• For board members, there is no notation about whether they should or should not be notified and given a chance to defend themselves. but I am reading the bylaws right now and will confirm.
   

Was the board member not informed of the meeting, or just not informed of the disciplinary proceedings to come up at the meeting?

• it was a regularly scheduled board meeting, but he was not informed of the disciplinary proceedings. He received an agenda, but it did not include any information about that.

 

on another note, the bylaws state "A quorum shall be greater than fifty percent (50%) of the acting Board of Directors." What does that mean for all this if one board member was "available by phone/text?"

 

 

[Josh Martin]

on another note, the bylaws state "A quorum shall be greater than fifty percent (50%) of the acting Board of Directors." What does that mean for all this if one board member was "available by phone/text?"

 

Based upon the facts presented, it would appear that if one member was "available by phone/text," a quorum was not present.

 

Declaring business null and void on the basis that a quorum was not present, however, requires "clear and convincing proof," and such proof is generally difficult to obtain.

[Guest T_Raison]

Based upon the facts presented, it would appear that if one member was "available by phone/text," a quorum was not present.

 

Declaring business null and void on the basis that a quorum was not present, however, requires "clear and convincing proof," and such proof is generally difficult to obtain.

 

They minutes stated 4 board members were present and one was available by phone/text. is there some other proof you are referring to?

[Josh Martin]

They minutes stated 4 board members were present and one was available by phone/text. is there some other proof you are referring to?

 

I'm not certain I would consider the minutes to be "clear and convincing proof" in all circumstances (although I might in this case).

 

I'm not the one the board member needs to convince, though. It will ultimately be up to the assembly.

[T_Raison]

I'm not certain I would consider the minutes to be "clear and convincing proof" in all circumstances (although I might in this case).

 

I'm not the one the board member needs to convince, though. It will ultimately be up to the assembly.

 

True, and the Board can set up another Board vote if this one is invalid, correct?

[Josh Martin]

True, and the Board can set up another Board vote if this one is invalid, correct?

 

Yes. The board could also ratify its previous vote at a board meeting.

[T_Raison]

Yes. The board could also ratify its previous vote at a board meeting.

 

If the bylaws state Board decisions are based by quorum or simple majority and also states   a majority of remaining Board Members may vote to address these issues

 

Does that mean that the vote has to be 4 in favor out of 6 remaining board members? And in this case, If the quorum did not exist in the first vote, then does the board have to discuss the decision again with at least a quorum present in order to vote on it again? or can they just vote with some of the Board members never hearing the discussion. If no where does it state that an accused board member be allowed to give a defense or not be allowed, per RONR does a board member have the right to be present for the new vote and present a defense?

[Josh Martin]

If the bylaws state Board decisions are based by quorum or simple majority and also states   a majority of remaining Board Members may vote to address these issues

 

Does that mean that the vote has to be 4 in favor out of 6 remaining board members? And in this case, If the quorum did not exist in the first vote, then does the board have to discuss the decision again with at least a quorum present in order to vote on it again? or can they just vote with some of the Board members never hearing the discussion.

 

It's up to your organization to interpret its own bylaws. See RONR, 11th ed., pgs. 588-591 for some Principles of Interpretation.

 

The motion to Ratify is debatable, so unless no one wants to talk or if the board orders the Previous Question (which requires a 2/3 vote), the board members will hear the discussion.

 

Also, what do you mean by six remaining board members? Was the disciplined member removed from the board?

 

If no where does it state that an accused board member be allowed to give a defense or not be allowed, per RONR does a board member have the right to be present for the new vote and present a defense?

 

The member certainly has the right to be present and the general right to speak in debate (presumably in his defense).

 

Under the disciplinary procedures in RONR, the member would also have the right to be notified in advance of the proceedings and the charges against him, and a specific right to speak in his defense... but the procedures in your bylaws supersede RONR.

[T_Raison]

Also, what do you mean by six remaining board members? Was the disciplined member removed from the board?

 

No it's still a board of 7 members, however, the bylaws state that a majority of the the remaining board members may vote, which I interpret as the accused board member does not get a vote.

[Josh Martin]

No it's still a board of 7 members, however, the bylaws state that a majority of the the remaining board members may vote, which I interpret as the accused board member does not get a vote.

 

Yes, I think that could be one reasonable interpretation.

[Bruce Lages]

A board member of a non-profit organization (7 on the board) is being accused of breaking confidentiality. Members of the organization brought a complaint against another member. The entire board voted to not talk to one of the people involved in the dispute, (I'll call this person "A") and took the word of the members who brought forth the complaint, and issued a sanction.

 

One Board member asked "A" to confirm a portion of the story the members put in the complaint. "A" confirmed that it was not true. Because of this information, the board was forced to reduce the sanction and was angry at the board member for talking to "A" when they voted not to.

 

1. Did the board member breach confidentiality?

 

 

I'm not sure I would consider what this board member did as a breach of confidentiality. There is nothing in T_Raison's post that indicates the board meeting was held in executive session. I think that whether a breach occurred or not would depend on the wording of the motion which resulted in the board not talking to member "A".  If, e.g., the stated intent of that motion was that member "A" not be brought before the board at a board meeting to address the complaint against him, then, in the absence of an executive session restriction, I don't see that as precluding an individual board member from doing what this board member did.

 

OF course,If the meeting were in executive session, then my conclusion would probably be different.

[T_Raison]

I'm not sure I would consider what this board member did as a breach of confidentiality. There is nothing in T_Raison's post that indicates the board meeting was held in executive session. I think that whether a breach occurred or not would depend on the wording of the motion which resulted in the board not talking to member "A".  If, e.g., the stated intent of that motion was that member "A" not be brought before the board at a board meeting to address the complaint against him, then, in the absence of an executive session restriction, I don't see that as precluding an individual board member from doing what this board member did.

 

OF course,If the meeting were in executive session, then my conclusion would probably be different.

 

"A" is not a member, but was known to the accused member and was at the center of the complaint. "A" was the only person who could verify whether the complaint was valid. The Board voted not to talk to "A". The Board member was talking to "A" about an unrelated matter and asked for verification.

 

The vote to not talk to "A" was held in Closed.

[Josh Martin]

"A" is not a member, but was known to the accused member and was at the center of the complaint. "A" was the only person who could verify whether the complaint was valid. The Board voted not to talk to "A". The Board member was talking to "A" about an unrelated matter and asked for verification.

 

The vote to not talk to "A" was held in Closed.

 

Based on these additional facts, it seems even clearer that the board member violated confidentiality.

 

I'm not sure that I personally agree with (or even understand) the board's decision not to talk to the only person who could verify whether the complaint was valid, but the board may nonetheless discipline the member for violating that decision and the confidentiality of executive session. It must, however, follow proper procedure in doing so.

[T_Raison]

Based on these additional facts, it seems even clearer that the board member violated confidentiality.

 

I'm not sure that I personally agree with (or even understand) the board's decision not to talk to the only person who could verify whether the complaint was valid, but the board may nonetheless discipline the member for violating that decision and the confidentiality of executive session. It must, however, follow proper procedure in doing so.

 

True. I don't understand it as well. As a member myself, I hope they work to better establish rules around investigation and discipline. As well as flesh out the bylaws and procedures.

 

As far as allowing board members to be available via phone/text, they argue that there is precedence. They've held votes that way in the past. I've passed on the info that it's not allowed and they either need to edit the bylaws to allow it or stop doing it.

[Josh Martin]

As far as allowing board members to be available via phone/text, they argue that there is precedence. They've held votes that way in the past. I've passed on the info that it's not allowed and they either need to edit the bylaws to allow it or stop doing it.

 

The fact that they've held votes that way in the past (which is a custom, not a precedent) is not sufficient to authorize absentee voting.

 

A precedent is a bit different. A precedent is created by the chair's ruling on a Point of Order and by the assembly's decision on an Appeal. Even if it was correct that there was a incorrect precedent on this issue, however, that would still not be sufficient. An amendment to the bylaws would indeed be necessary to authorize this practice.

[J. J.]

Based on these additional facts, it seems even clearer that the board member violated confidentiality.

 

I'm not sure that I personally agree with (or even understand) the board's decision not to talk to the only person who could verify whether the complaint was valid, but the board may nonetheless discipline the member for violating that decision and the confidentiality of executive session. It must, however, follow proper procedure in doing so.

 

I may be misunderstanding the question, but this does not seem to have violated confidentiality.

 

The complaint seems to to be that something happened that A witnessed.  One member of the board, speaking to A, asked, "Did you witness this action."  A says no.  I would not see that as a violation of confidentiality.

[Josh Martin]

I may be misunderstanding the question, but this does not seem to have violated confidentiality.

 

The complaint seems to to be that something happened that A witnessed.  One member of the board, speaking to A, asked, "Did you witness this action."  A says no.  I would not see that as a violation of confidentiality.

 

Fair enough. I suppose it would not have violated the confidentiality of executive session if that is all the member said - that is, if he didn't discuss the disciplinary proceedings.

[T_Raison]

Correct, nothing else was shared. Just verification whether the incident was true or false.

[Guest Nancy N.]

I'm looking at this, from the Original Post (#1, in numerical parlance):  "The entire board voted to not talk to one of the people involved ...."  If this means that the board voted not to bother dragging Mr. A. into the board meeting (perhaps called a hearing, in numerical parlance) for a grilling, period, and if nothing else were involved, then as far as I (and it looks like JJ) can tell, the sanctioned board member (let's call him "B", in arithmetical parlance) violated no confidentiality, and no sanction of B is justified.

 

On the other hand, if it were enacted by the board that none of its members would discuss the dispute, the sanction of A, or any related matters, then I think B clearly violated that decision,  and thoroughly deserves sanctioning.

 

I don't think the fact that "The vote to not talk to "A" was held in Closed", per Post 14, is germane, strictly.

 

Also, could one of you college graduates please explain to me how 4 members present out of 7 does not qualify as 50% or more, regardless of whether anyone else happened to be on the phone.

-- Nancy N.

[Josh Martin]

Also, could one of you college graduates please explain to me how 4 members present out of 7 does not qualify as 50% or more, regardless of whether anyone else happened to be on the phone.

 

My understanding is that one of the four members who was "present" was actually on the phone.

[T_Raison]

I was wrong on the quorum being present; it clearly was, however historically the chair normally only votes in a tie. If the 3 present voted plus the person on the phone, but the chair abstained, was that a valid majority?

[J. J.]

I was wrong on the quorum being present; it clearly was, however historically the chair normally only votes in a tie. If the 3 present voted plus the person on the phone, but the chair abstained, was that a valid majority?

 

 

If the chair is a voting member of the board, i.e. one of the seven voting members, that would be a valid majority, under RONR. 

 

While a point of order could have been raised at the time, it was not and it is too late to raise one (p. 251, ll. 3-10, fn., see also, p. 17, ll. 22-25).

[Guest Nancy N.]

My understanding is that one of the four members who was "present" was actually on the phone.

This was buried in the Original Post:  "The meeting minutes noted that 4 people were in attendance (the chair and 3 others) and one was available by text/phone as needed."  I did have to hunt for a while.