No trial allowed due to state law

[BabbsJohnson]

If state laws restrict what can be done in executive session, and if such laws do not allow for a trial, how can a society proceed with discipline?

Must they design a process that takes place without a quorum if the board, or mustvtgey design a process that can take place in open session?

 

[Rob Elsman]

I think an attorney is needed to answer your question.

[J. J.]

19 minutes ago, .oOllXllOo. said:

If state laws restrict what can be done in executive session, and if such laws do not allow for a trial, how can a society proceed with discipline?

Must they design a process that takes place without a quorum if the board, or mustvtgey design a process that can take place in open session?

 

From a procedural standpoint, the society could enact a special rule requiring trials to be held in open session.  It also must obey any applicable procedural rules in law; they would be similar to a special rule, in that they supersede the parliamentary authority.  The simple fact that the assembly cannot meet in executive would not be sufficient to prevent it from holding a trial. 

I would note that there could be liability issues with holding a trial in open session, though that is a legal question.

[Guest Zev]

Another Question For The Attorney

What if the state law is restricting the board's discretion but not any committee? Can the society appoint a special trial committee that would then meet in executive session and conduct the trial this way?

[BabbsJohnson]

21 minutes ago, Guest Zev said:

Another Question For The Attorney

What if the state law is restricting the board's discretion but not any committee? Can the society appoint a special trial committee that would then meet in executive session and conduct the trial this way?

The committee would have to be less than a quorum, correct?

also: should both partie (complainant and alleged offender) be excluded from being on such a committee?

[Guest Zev]

1 hour ago, .oOllXllOo. said:

The committee would have to be less than a quorum, correct?

A committee is whatever size the appointing body wishes it to have.

1 hour ago, .oOllXllOo. said:

also: should both partie (complainant and alleged offender) be excluded from being on such a committee?

It makes no sense for them to be committee members. They would vote for their own side of the issue.

[BabbsJohnson]

1 hour ago, Guest Zev said:

A committee is whatever size the appointing body wishes it to have.

It’s my understanding that committees must always be less than a quorum of the board, otherwise it’s a board meeting.

The only exception I’ve seen is outlined in our By-Laws, and they specify that an executive committee of the board shall be no less than 7 directors (which is the size of our whole board).

I imagine this was done so no one director could be intentionally excluded.

[Gary Novosielski]

The requirement that committees be less than a quorum is a side effect of the sunshine laws which often provide that whenever a quorum of members is gathered in any venue, it constitutes a meeting of the Board and is subject to all notice, advertising, agenda, and public attendance requirements, and that any decisions made in such a meeting are held to be official acts of the Board, not merely of the committee.

Edited June 26, 2019 at 03:38 AM by Gary Novosielski

[Atul Kapur]

1 hour ago, .oOllXllOo. said:

It’s my understanding that committees must always be less than a quorum of the board, otherwise it’s a board meeting.

 

1 hour ago, Gary Novosielski said:

The requirement that committees be less than a quorum is a side effect of the sunshine laws

But there is nothing to support this idea in RONR. Under RONR, the entire membership can be in one place (such as a BBQ or other social event) and that does not, by itself, constitute a meeting.

[BabbsJohnson]

5 hours ago, Atul Kapur said:

 

But there is nothing to support this idea in RONR. Under RONR, the entire membership can be in one place (such as a BBQ or other social event) and that does not, by itself, constitute a meeting.

There are exceptions in the Open Meeting Act where I live, that states social functions, seminars, etc where board issues are not being discussed or deliberated upon are ok, and not a board meeting.

Committees discuss issues that are board jurisdiction.

[Josh Martin]

15 hours ago, .oOllXllOo. said:

If state laws restrict what can be done in executive session, and if such laws do not allow for a trial, how can a society proceed with discipline?

Must they design a process that takes place without a quorum if the board, or mustvtgey design a process that can take place in open session?

 

For starters, did you check whether your bylaws have their own rules concerning discipline or removal? Those rules take precedence over RONR. Maybe you don’t need a trial at all.

The questions concerning open meeting law will have to be directed to an attorney.

[BabbsJohnson]

Just now, Josh Martin said:

For starters, did you check whether your bylaws have their own rules concerning discipline or removal? Those rules take precedence over RONR. Maybe you don’t need a trial at all.

The questions concerning open meeting law will have to be directed to an attorney.

Removal of officers can be done at any time by a majority of the board. Removal of directors must be done by the membership. There are no other mentions of discipline past that.

[Josh Martin]

Just now, .oOllXllOo. said:

Removal of officers can be done at any time by a majority of the board. Removal of directors must be done by the membership. There are no other mentions of discipline past that.

Well, there you have it. That’s how your disciplinary process works. No trial needed.

[Richard Brown]

16 hours ago, J. J. said:

The simple fact that the assembly cannot meet in executive would not be sufficient to prevent it from holding a trial

Oh, Jeez, J.J.....  now you're doing it, too!!!!  Executive WHAT???  Executive session?  Executive Committee?  Executive Board? Conference of Executive chefs?

[George Mervosh]

2 minutes ago, Richard Brown said:

Oh, Jeez, J.J.....  now you're doing it, too!!!!  Executive WHAT???  Executive session?  Executive Committee?  Executive Board? Conference of Executive chefs?

Since he quoted back a post that clearly said executive session, it's probably safe to say he fell down the "session" hole instead of his normal "not" hole.

[Richard Brown]

13 hours ago, .oOllXllOo. said:

It’s my understanding that committees must always be less than a quorum of the board, otherwise it’s a board meeting

I don't think this is necessarily true, but I guess it could depend on the exact wording of and judicial interpretations of your state's open meetings laws.  That is a question for an attorney.

[Richard Brown]

13 hours ago, Gary Novosielski said:

The requirement that committees be less than a quorum is a side effect of the sunshine laws which often provide that whenever a quorum of members is gathered in any venue, it constitutes a meeting of the Board and is subject to all notice, advertising, agenda, and public attendance requirements, and that any decisions made in such a meeting are held to be official acts of the Board, not merely of the committee.

Gary, that might be the case, but I'm not convinced that it is.... and if it is, it may be due to misunderstandings of the open meetings law.  In the case of my own state's open meetings law... and those of some others that I am familiar with...  committees of public bodies are themselves deemed public bodies and subject to the open meetings law.  So, in such a case, the size of the committee makes no difference. 

11 hours ago, Atul Kapur said:

 

But there is nothing to support this idea in RONR. Under RONR, the entire membership can be in one place (such as a BBQ or other social event) and that does not, by itself, constitute a meeting.

I agree.  But, there does exist a somewhat common misconception that a quorum of the members of a public body cannot be together in the same place at the same time under any circumstances without it constituting an illegal "meeting".  That is a misconception and is simply not true.  If it is a social gathering, for example, and no official business is discussed, it is perfectly appropriate. 

[J. J.]

 

Yes, executive session. 

[Gary Novosielski]

13 hours ago, Atul Kapur said:

 

But there is nothing to support this idea in RONR. Under RONR, the entire membership can be in one place (such as a BBQ or other social event) and that does not, by itself, constitute a meeting.

Quite true, but in this case it has been established that sunshine laws do apply.  Some have exceptions for conferences and other events where the rule would be an undue burden, but that's a matter for an attorney.

[Gary Novosielski]

22 hours ago, Richard Brown said:

Gary, that might be the case, but I'm not convinced that it is.... and if it is, it may be due to misunderstandings of the open meetings law.  In the case of my own state's open meetings law... and those of some others that I am familiar with...  committees of public bodies are themselves deemed public bodies and subject to the open meetings law.  So, in such a case, the size of the committee makes no difference. 

I agree.  But, there does exist a somewhat common misconception that a quorum of the members of a public body cannot be together in the same place at the same time under any circumstances without it constituting an illegal "meeting".  That is a misconception and is simply not true.  If it is a social gathering, for example, and no official business is discussed, it is perfectly appropriate. 

Not all sunshine laws are alike.  That may be true in certain jurisdictions, and not in others.  New Jersey for example is particularly strict.  Although committees are public bodies, the size can make a difference.  If less than a quorum of the board, a vote in committee is an act of the committee, if a quorum is present it is an act of the Board.  Apparently it stems from case law where a negotiating committee signed a memorandum of agreement a contract with the union, which it believed was subject to ratification by the full board, but as the committee comprised a quorum of the board, the judge ruled that the board had effectively ratified it already.  Not a decision I'd agree with, but strange things are possible in government.

 

Edited June 27, 2019 at 03:22 PM by Gary Novosielski
(as noted)

[Atul Kapur]

2 hours ago, Gary Novosielski said:

Quite true, but in this case it has been established that sunshine laws do apply.... that's a matter for an attorney.

I was trying (in vain, apparently) to turn this thread back to RONR rather than a discussion of how to interpret sunshine laws in various jurisdictions. The OP has been advised repeatedly, as you just did again, to consult an attorney.

[Gary Novosielski]

Point well taken.

[BabbsJohnson]

6 hours ago, Atul Kapur said:

I was trying (in vain, apparently) to turn this thread back to RONR rather than a discussion of how to interpret sunshine laws in various jurisdictions. The OP has been advised repeatedly, as you just did again, to consult an attorney.

And I was not ignoring that advice, it’s just easier said than done.