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Investigating committee


J. J.

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The situation is hypothetical, though I have seen similar things.

 

Mr. N, a member of the society, is charge with a crime and put on trial in criminal court.  It is a notorious crime and the transcript of the trial was publicly released.  There is a lot of publicity.  Mr. N is convicted and sentenced to 25 years, minimum.  He continues, however, to pay his dues to the society and there is no attendance requirement.

 

The society wishes to remove Mr. N.  They are, along with the general public, are familiar with the details.   Must the society appoint an investigating committee?  If so, could the committee report back immediately after drafting a charge? 

 

In this case, the charge would be:

 

Charge:  Conduct unbecoming a member.

 

Specification:  In that Mr. N on or about [date], was convicted of [crime] in the [court].

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The society wishes to remove Mr. N.  They are, along with the general public, are familiar with the details.   Must the society appoint an investigating committee?  If so, could the committee report back immediately after drafting a charge? 

 

 

Unless there is some other method in the society's rules to bring the charges about, I think the answer to both questions is, yes.

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Since the offense occurred OUTSIDE of a meeting, RONR says that a committee-to-investigate is necessary.

 

Having a newspaper, a magazine, a blog, etc., of the (edited!) story is not enough.

"The court of public opinion" is not a parliamentary tool.

 

Remember, you (collectively) are violating the bylaws. -- The bylaws do not allow for early termination of memberships.

So, you cannot short-change the whole due process.

 

You cannot skimp.

You cannot cut to the chase.

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Since the offense occurred OUTSIDE of a meeting, RONR says that a committee-to-investigate is necessary.

 

Having a newspaper, a magazine, a blog, etc., of the (edited!) story is not enough.

"The court of public opinion" is not a parliamentary tool.

 

Remember, you (collectively) are violating the bylaws. -- The bylaws do not allow for early termination of memberships.

So, you cannot short-change the whole due process.

 

You cannot skimp.

You cannot cut to the chase.

 

 

They would not be, technically.  They would be adopting a resolution charging Mr. N.  The trial would have to be held.  The accused would get proper notice.  He would have a right to counsel.  Those elements, where the assembly interacts (potentially) with the accused, would not be effected. 

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p. 657, ll. 31-36: "An individual member may not prefer charges, even if that member has proof of an officer's or a member's wrongdoing. If a member introduces a resolution preferring charges unsupported by an investigating committee's recommendation, the chair must rule the resolution out of order..."

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p. 657, ll. 31-36: "An individual member may not prefer charges, even if that member has proof of an officer's or a member's wrongdoing. If a member introduces a resolution preferring charges unsupported by an investigating committee's recommendation, the chair must rule the resolution out of order..."

 

 

Perhaps the question I should ask is if it would be a continuing breach.  Or, could the rules be suspended to permit it. 

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How about a breach of a continuing nature?

 

Yes, I think it would be a breach of a continuing nature, at least up to a certain point. The tricky part is determining when that point is. My best guess is that a Point of Order would be appropriate up until the accused has pleaded to the charges and specifications (or up until the next step if the accused is absent). If the accused enters a plea (and the rest of the assembly is silent), it seems clear that the accused and the assembly accept that the charge and specifications are valid (even although their accuracy may be disputed). Up until that time, it would seem appropriate to raise a Point of Order that the charges and specifications are invalid on the grounds that they were not supported by the recommendation of an investigative committee.

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First, the purpose of this question is to see how badly an assembly can screw up disciplinary action before it becomes invalid.  :)   It is not based on a real case. 

 

Yes, I think it would be a breach of a continuing nature, at least up to a certain point. The tricky part is determining when that point is. My best guess is that a Point of Order would be appropriate up until the accused has pleaded to the charges and specifications (or up until the next step if the accused is absent). If the accused enters a plea (and the rest of the assembly is silent), it seems clear that the accused and the assembly accept that the charge and specifications are valid (even although their accuracy may be disputed). Up until that time, it would seem appropriate to raise a Point of Order that the charges and specifications are invalid on the grounds that they were not supported by the recommendation of an investigative committee.

 

An assembly may adopt charges even if the committee recommends against (and does not draft) any charges (p. 658, fn.).  They would not have to be supported by a committee.  The assembly (in general and in this case) adopts the charges.    I think the Point of Order would have to be raised before the assembly adopts the charges, at least. 

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But there is, indeed, a committee in the procedures you cite.

 

 

There is a committee, but it is clear that the committee need not act on the charges, under the same citation.

 

I do think, under the regular rules, the motion similar to the one on p. 660 should be ruled out of order, if made by a member.  I am not convinced that the rules could not be suspended to permit and that it would be subject only to a timely Point of Order.

 

I also think that, without suspending the rules, the assembly may refer the issue to a committee of one, who would report immediately, or to a committee of the whole (or its variants).  

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I generally concur with most of the above, but you may be making this more complicated than it needs to be.  Assuming the governing documents allow discipline for "conduct unbecoming a member" and conviction of a crime fits that definition, you don't need to retry the facts.  All you need to do is verify that the member was, in fact, convicted.  That can easily be done by an investigating committee of one person who can report immediately.   The member is unlikely to contest the discipline unless he or she is appealing the conviction.  If that is the case, you would be best either to wait until the appeal is resolved or take no action greater than suspending membership, rather than terminating, pending resolution of the appeal.

 

Note that my answer here is based upon this being a "notorious" crime, presumably a felony.  My response would inevitably be more complex if the conviction was for a simple misdemeanor, and possibly even for a felony if it was committed during an act of civil disobedience.

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First, I do think that the rule relating to the phrasing of the motion would apply (pp. 657-8).  The motion should be ruled out of order.

 

Second, I also think that, if the motion was made, the point order would have to be raised in a timely manner, at least no later than when the motion was adopted, based on the footnote on pp. 658-9.  The assembly clearly can adopt a resolution preferring charges without a committee report, or with a committee report recommending against preferring charges, based on that footnote.  In those cases, the assembly prefers the charges; in this hypothetical, the assembly is preferring charges as well.  In both cases, the committee would not be drafting a resolution; it would be up to a member to move a resolution to prefer charges. 

 

It is difficult to claim that the accused had a "basic right" to have his situation reviewed by a committee (p. 656, ll. 1-6).

 

Because of that, I would suspect that, technically, the rule relating to the phrasing could be suspended, by a two thirds vote.  Because a motion, properly phrased, could be sent to a committee of one, or to a committee of the whole (or its variations), by a majority vote, it would seldom be practical to suspend the rules in order to do this.

 

As to smb's comments, I think that if the assembly feels that there is sufficient evidence to adopt a resolution preferring charges, in may.  It may take disciplinary action even if the member has appealed or even before a conviction.  It is, for lack of a better term, a "political decision" of the assembly.  The member, or his counsel, may note the lack of investigation by the society during the trial. 

 

I will also note, in that regard, that I am a member of an organization that has had a fellow member on death row in Florida for more than 20 years.  The organization chose not to pursue disciplinary action. :)

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I'm going to throw on that there appears to be nothing preventing the Investigating Committee being a committee of the whole, or from the assembly directing the committee to report a specific recommendation. So this rule seems on the whole rather silly as a procedural one. Not that there aren't other shenanigans that can be done through similar abuse of committees (like avoiding the quorum rule). I like to call such rules nonconvex, but I'm not sure anyone who isn't a mathematician would understand why. :)

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I'm going to throw on that there appears to be nothing preventing the Investigating Committee being a committee of the whole, or from the assembly directing the committee to report a specific recommendation. So this rule seems on the whole rather silly as a procedural one. Not that there aren't other shenanigans that can be done through similar abuse of committees (like avoiding the quorum rule). I like to call such rules nonconvex, but I'm not sure anyone who isn't a mathematician would understand why. :)

 

 

I do not agree that the rule is "rather silly."  In general, there would not be the level of documentation described and an investigation would be necessary. 

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I'm going to throw on that there appears to be nothing preventing the Investigating Committee being a committee of the whole, or from the assembly directing the committee to report a specific recommendation. So this rule seems on the whole rather silly as a procedural one. Not that there aren't other shenanigans that can be done through similar abuse of committees (like avoiding the quorum rule). I like to call such rules nonconvex, but I'm not sure anyone who isn't a mathematician would understand why. :)

I don't know that I would say it's a silly rule, but I will stick my neck out and say that I don't believe most small organizations will bother with an investigating committee when the majority of members pretty obviously want to expel the member.  We will be lucky if they grant him a hearing and a reasonable opportunity to prepare a defense and to defend himself at the hearing/meeting. 

 

Someone will move to expel him and the assembly (or  board) will, hopefully, at least set a hearing date sufficiently distant to enable him to prepare a defense and provide him some modicum of due process at that hearing/meeting. 

 

Unfortunately, I believe that is the way it is out there in the real world of small, local organizations.

 

For  those of you who have read my response to the recent thread asking how we got involved in parliamentary procedure, please note that it was the wrongful expulsion of a member from an organization I was a member of that got me truly committed to the study of parliamentary procedure.  In that case, the group expelled the member without a hearing at the same meeting at which the motion to expel him was made.  I was at least able to get them to declare that "hearing" improper and to grant him a new hearing at which he could put on a proper defense.  And he was expelled again.  And sued anyway.  And we won, but only because of the second hearing.

 

Edited to add:  My reading of many court decisions involving expulsion of members leads me to believe that the courts do not insist on a technical adherence to every aspect of the RONR disciplinary procedures, but rather the courts look to see if the expelled member was afforded fundamental due process, i.e., notification of the charges against him and a reasonable opportunity to present a defense. 

 

If anyone has information to the contrary, I welcome it.

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I think that you might ask you fellow Louisianian, Alison Wallis, about it.  :)

We've discussed it on more than one occasion going back a couple of years or more, starting with a phone call or email from her when she was preparing for a workshop on the subject.  She knew about the case I had been involved in.  I don't think she has information contrary to what I posted, but I'll check with her again.  I hope to see her at our NAP unit meeting next Monday.  I need to touch base with her on something else, too.  If she does have information that I'm not aware of, I want to learn about it.  :)

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