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jstackpo

How Much Bylaw Detail does it Take to Override Chapter 20?

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Here's about the simplest bare bones case I am dealing with:

Organization structure  Has (uppercase "M") Members who are elected from a large pool of potential members by the existing Members, and an Executive Board comprising the usual four Officers elected by the Members. 

Bylaws say: "All control, management and direction of the affairs and property of the Organization shall be vested in its Members.  The Members shall: (1) generally govern the business of the Organization; (2) oversee the management of the Organization’s assets;" 

"The Executive Board may exercise all the administrative powers and authority of the Members in the management of the business of the Organization except the power to amend the bylaws or charter."   There is no mention of "exclusive control", in the bylaws.

Discipline related provisions from the Bylaws (the only ones):

"Any  Member may be expelled [from the Organization] by a two-thirds vote at an Organization meeting [of Members] at which there is a quorum"

"Any Officer may be removed from office by a two-thirds (2/3) vote at a meeting of the Organization at which there is a quorum present."

There is NO mention of "for cause", "with or without cause", any notice requirements for "expelled" or "removed", nor any additional procedural requirements set out in the bylaws.  

And finally...

"Members shall serve for a term of two (2) years or until their successors are elected."  Note the "or until".

Officers shall be elected at the Annual meeting and shall serve for a term of two (2) years or until their successors are duly qualified, elected, and installed."  Again, note the "or until" clause.

Clearly, the Members have to power to toss out any of their fellow Members at will.  Also, the Members can remove any Officer from office, and the Executive Board, at will.

But here (finally(!), sorry to take so long) is the question:  What about other "penalties" (other than Censure)?  If the Organization wanted to impose a fine (authorized), or suspend a Member's rights, or even require a formal written apology from a Member for some admitted offense, would a Chapter 20 formal trial be necessary? 

(I know, I know, this is probably a "bylaw interpretation" question, but I'm seeking solid reasons implied by or from RONR.)

Edited by jstackpo
Remove stray puntuation

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My understanding is that unless there are special rules, bylaws, statutory laws, etc. that supersede the parliamentary authority, than the parliamentary authority provides the rules to follow. In this case, assuming RONR is a adopted parliamentary authority, that means Chapter 20 is necessary unless other rules have been adopted. I would guess that the type of situation you are describing is one reason RONR includes the final paragraph of that chapter, namely p. 669, ll. 32-36:

"...having a Committee on Discipline has the advantages of not unduly inconveniencing the society, and of promoting the avoidance of scandal and the settlement of disciplinary problems without an actual trial" [emphasis added].

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50 minutes ago, jstackpo said:

But here (finally(!), sorry to take so long) is the question:  What about other "penalties"

Is this line from the explanation of Bylaw Principle of Interpretation (7) helpful?

"If, for example, it is desired to allow the board to diminish or waive the penalty, or increase it, the bylaw must not make it definite or must specifically provide for diminution, waiver, or enlargement."

It would seem that the Members have one penalty allowed to them under the bylaws: expulsion / removal.

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Well, I dunno... Principle 7 seems to couple a definite penalty with a specific offense - "my" little example indicates a penalty, to be sure (expulsion or removal), but doesn't tie it to any specific offense at all. It is a free range penalty that could apply to any offense that the members might be offended by.

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I find this topic fascinating.  It is something I have wondered about and wrestled with many times, so I'm hoping for a little resolution as to "how much bylaw detail it takes to override Chapter 20 of RONR".   It has been my experience that most bylaws which address discipline don't provide for a complete disciplinary process, leaving members and parliamentarians to ponder the extent to which  the rules and procedures in chapter 20 still  apply. 

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2 hours ago, jstackpo said:

What about other "penalties" (other than Censure)?  If the Organization wanted to impose a fine (authorized), or suspend a Member's rights, or even require a formal written apology from a Member for some admitted offense, would a Chapter 20 formal trial be necessary? 

Fines may only be imposed if authorized by the bylaws, and one hopes that if the bylaws contain such an authorization, they also specify how such a penalty is to be imposed.

I think suspension would require the same procedures as for removal. It seems to me that suspension is essentially a subset of removal, since both deprive a member of their rights - the only difference is that one is permanent and one is temporary.

If the society wishes to require a formal written apology, it seems to me that a majority vote is sufficient for this purpose, although in the event that it is desired to take further action in the event that the member fails to write the apology, the vote required for those actions(s) would be the same as in any other case.

So no, I do not think the society in question is required to hold a Chapter 20 formal trial for any of the penalties mentioned. I think it would still be desirable, however, for the society to meet in executive session when considering disciplinary matters.

2 hours ago, Atul Kapur said:

Is this line from the explanation of Bylaw Principle of Interpretation (7) helpful?

"If, for example, it is desired to allow the board to diminish or waive the penalty, or increase it, the bylaw must not make it definite or must specifically provide for diminution, waiver, or enlargement."

It would seem that the Members have one penalty allowed to them under the bylaws: expulsion / removal.

I disagree that the language in question means that other penalties are prohibited. The full text of Principle of Interpretation #7 is as follows: “The imposition of a definite penalty for a particular action prohibits the increase or diminution of the penalty. If the bylaws state that a member shall be dropped from membership on a board if he misses three consecutive regular meetings of the board, he cannot be retained by vote of the board, nor can more severe penalties be imposed, such as a fine in addition. If, for example, it is desired to allow the board to diminish or waive the penalty, or increase it, the bylaw must not make it definite or must specifically provide for diminution, waiver, or enlargement.” (RONR, 11th ed., pg. 591)

The language in question, however, is not “a definite penalty for a particular action.” Rather, it is a penalty which is applied in the society’s discretion and in such circumstances as the society feels warrant the penalty. The text says that a member may be expelled, not that a member shall be expelled in particular circumstances.

Edited by Josh Martin

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A sort of "generic" (and hence oversimplified) answer to my puzzle could be that "Procedure, not Penalties, override RONR", since RONR is a procedure book, not a (complete) penalty or sentencing guide.

But that leaves hanging the questions "How much Procedure; Which Penalties?".    

My case study has two clear-cut penalties:  removal and expulsion, but only a modicum of procedure:  the requirements for a simple 2/3 vote  (overriding the  other vote options in the book for removal: majority with notice or MEM for removal; retaining 2/3 for expulsion).   Are those procedures sufficient to override the RONR full trial requirements for other penalties?

Responding, in part, to Josh, who wrote "If the society wishes to require a formal written apology, it seems to me that a majority vote is sufficient for this purpose".  I agree, but the book describes the imposition of such a (lesser) penalty (including suspension) at the end of the full trial procedure, not before guilt is established by a trial.  Otherwise you have Alice's problem with the Queen: "Sentence first, verdict afterwards!"  << https://ebooks.adelaide.edu.au/c/carroll/lewis/alice/chapter12.html >>

 

 

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The question I read the OP making is: does an assembly need a formal trial to impose (even a relatively minor) penalty?

p. 644 states that "formal disciplinary measures should generally be regarded as a drastic step reserved for serious situations (ll. 8-10). RONR states that conduct which "tend to injure the good nature of the organization, disturb its well-being, or hamper it in its work" is a serious office. At the same time, RONR goes on to say "It is usually in the best interests of the organization first to make every effort to obtain a satisfactory solution of the matter quietly and informally" (ibid, ll. 11-12). So,  It still seems to be that if a formal solution is desired, the only remaining option is to initiate formal disciplinary measures, either by formal trial or by investigation of a Committee on Discipline, unless there are superseding rules to the contrary. But, if the assembly wishes to "obtain a satisfactory solution of the matter quietly and informally", then no, no formal proceedings are needed to impose a penalty. All of that said, it seems to me that any act that would make the assembly require a formal apology or suspend a member's rights (examples given in the original question) would seem to me serious enough to require a formal proceeding.

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For some reason my most recent post appears with a long strike-out. This was not intended, and I am unable to edit out the strikeout.

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3 hours ago, jstackpo said:

My case study has two clear-cut penalties:  removal and expulsion, but only a modicum of procedure:  the requirements for a simple 2/3 vote  (overriding the  other vote options in the book for removal: majority with notice or MEM for removal; retaining 2/3 for expulsion).   Are those procedures sufficient to override the RONR full trial requirements for other penalties?

In my view, yes.

3 hours ago, jstackpo said:

Responding, in part, to Josh, who wrote "If the society wishes to require a formal written apology, it seems to me that a majority vote is sufficient for this purpose".  I agree, but the book describes the imposition of such a (lesser) penalty (including suspension) at the end of the full trial procedure, not before guilt is established by a trial.  Otherwise you have Alice's problem with the Queen: "Sentence first, verdict afterwards!" 

The text discusses the imposition of a sentence of requiring the member to leave the hall until he is prepared to make an apology. This is in the context of penalties for offenses occurring during a meeting, and therefore no trial is involved. The text does not discuss this possibility in the context of a trial, but presumably the assembly has the option to suspend a member of some or all of his rights until he is prepared to apologize. I have no disagreement that penalties of this nature would require a 2/3 vote in the assembly in question, because they involve a suspension of the member’s rights.

It seems to me, however, that if all the assembly wishes to do is to order a member to make an apology, and there are no further penalties imposed at the present time, this is not substantively different from a motion to censure.

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5 hours ago, Richard Brown said:

It is something I have wondered about and wrestled with many times,

Me too. I don't have any developed thoughts, but I'm hoping to learn from this thread. It confuses me not only in respect to Chapter 20, but as a general matter.

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13 hours ago, Josh Martin said:

It seems to me, however, that if all the assembly wishes to do is to order a member to make an apology, and there are no further penalties imposed at the present time, this is not substantively different from a motion to censure.

I beg to differ.... with both Josh and, to my peril(?), with Dan...

But first, a clarification (that I may not have been clear about initially):  I intended the discussion of bylaw provisions overriding RONR to apply only to "offenses [committed] elsewhere than in a meeting" and the procedures related to dealing with them, as noted briefly on page 649, and extensively described starting on page 654. That, after all, is the bulk of the chapter and the more complicated material.

To Josh's point:  Seems to me that censure and ordering (or requiring) an apology are VERY different penalties.  The former is something the assembly can do by majority vote with no regard as to how the subject of the censure may feel about it; the latter requires action on the part of the subject which could have social and psychological consequences.  An apology requires, in effect, a public admission of guilt (at least within the confines of the association) by the offender, not always a comfortable thing to own up to.  A censure, obviously, does not require anything of the offender; the subject can simply ignore the censure and go on his or her merry way. 

Since a censure is of little practical consequence, RONR notes (p. 643, footnote, and elsewhere, see the index) that imposing the penalty of a censure does not require formal disciplinary procedures and hence does not require any proof of culpability, whether by a full trial or by a guilty plea.  A required apology/admission is quite a different kettle of (Maryland blue) crabs and, in my view,  requires the full due process steps of Chapter 20.  Otherwise how can one order an apology for something completely unproven that the subject may very well deny happened.

And while I am being disagreeable...

14 hours ago, Josh Martin said:

I have no disagreement that penalties of this nature would require a 2/3 vote in the assembly in question, because they involve a suspension of the member’s rights.

Note, on page 668, that any penalty less than expulsion from membership, once the trial steps have been completed, requires only a majority vote to impose.  Indeed, suspension of a member's rights can take place even before a trial actually gets under way, at the point that a formal notification is tendered to the accused party (p. 662 line 25ff).

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47 minutes ago, jstackpo said:

To Josh's point:  Seems to me that censure and ordering (or requiring) an apology are VERY different penalties.  The former is something the assembly can do by majority vote with no regard as to how the subject of the censure may feel about it; the latter requires action on the part of the subject which could have social and psychological consequences.  An apology requires, in effect, a public admission of guilt (at least within the confines of the association) by the offender, not always a comfortable thing to own up to.  A censure, obviously, does not require anything of the offender; the subject can simply ignore the censure and go on his or her merry way. 

Since a censure is of little practical consequence, RONR notes (p. 643, footnote, and elsewhere, see the index) that imposing the penalty of a censure does not require formal disciplinary procedures and hence does not require any proof of culpability, whether by a full trial or by a guilty plea.  A required apology/admission is quite a different kettle of (Maryland blue) crabs and, in my view,  requires the full due process steps of Chapter 20.  Otherwise how can one order an apology for something completely unproven that the subject may very well deny happened.

If the member continues to deny that it happened, then perhaps the member should refuse to write the apology and see what the assembly does about it.

50 minutes ago, jstackpo said:

Note, on page 668, that any penalty less than expulsion from membership, once the trial steps have been completed, requires only a majority vote to impose.  Indeed, suspension of a member's rights can take place even before a trial actually gets under way, at the point that a formal notification is tendered to the accused party (p. 662 line 25ff).

Yes, I understand this, but since the society’s own rules on this matter do not require any of the formal disciplinary procedures in RONR, it does not seem unreasonable to me that a 2/3 vote would be required for suspension as well.

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59 minutes ago, Josh Martin said:

If the member continues to deny that it happened, then perhaps the member should refuse to write the apology and see what the assembly does about it.

Yeah... but my (current) concern is with the rules to follow leading up to the imposition of the penalty, but not with any consequences if the accused (or guilty party) refuses to accede to the proper order.

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On 7/9/2019 at 9:24 AM, Josh Martin said:

Yes, I understand this, but since the society’s own rules on this matter do not require any of the formal disciplinary procedures in RONR, it does not seem unreasonable to me that a 2/3 vote would be required for suspension as well

Well now, another disagreement on my part, particularly with the assertion following "but since", and thus the conclusion about a 2/3 vote.

Consider what RONR does in Chapter 20, specifically for offenses elsewhere than in a meeting.  It lays out a fair due process system that an association must go through, by virtue of adopting RONR, to impose any penalty on someone who deserves such.  The penalty can range from censure all the way to expulsion from office or membership.  But then the book (simultaneously) allows two exceptions to following the full due process procedures:  a censure can be tendered by just a majority vote any old time and a removal from office can be accomplished by adopting a motion to remove following the requirements set out on pages 574 or 653, provided the "or until" phrase is in place in the bylaws.  I do not see any other exceptions to the go-thru-a-trial due process procedure for any other contemplated penalties (nor any related vote threshold requirements). Thus a proposal to suspend a member for a period of time, impose a fine, require a letter of apology, expel him from membership, or any number of imaginable penalties, MUST be preceded by the full due process (trial, &c) steps. No way around it.

Granted, the book mentions a couple of opportunities to "short-cut" the trial procedure (p. 656, lines 9 to 12, and p. 658, lines 21-24) but such a shortcut doesn't allow you to jump to the penalty phase (p. 667, line 31ff.), it merely ends the procedure, presumably with some sort of informal agreement, and NO formal imposition of a penalty by the association.

My sample organization, described in the initial posting, does add one more exception (expulsion by a 2/3 vote, no trial required) and actually makes the removal from office slightly more difficult than RONR's exception for removal. But not by much.  At least, since these proposals would be presented as  main motions, there would be opportunity for debate and, thus, a modicum of due process, but nothing like a full trial.  But adding a minimally detailed exemption or a slightly tighter rule for an existing exception can hardly be a reason to argue that other possible penalties are (magically) also now exempt from the full due process requirements.

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15 hours ago, jstackpo said:

My sample organization, described in the initial posting, does add one more exception (expulsion by a 2/3 vote, no trial required) and actually makes the removal from office slightly more difficult than RONR's exception for removal. But not by much.  At least, since these proposals would be presented as  main motions, there would be opportunity for debate and, thus, a modicum of due process, but nothing like a full trial.  But adding a minimally detailed exemption or a slightly tighter rule for an existing exception can hardly be a reason to argue that other possible penalties are (magically) also now exempt from the full due process requirements.

I don’t think it is at all unreasonable or magical to suggest that if an organization’s rules permit the expulsion of a member without a trial, that other, lesser penalties also do not require a trial.

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Clearly we differ of the philosophy of Chapter 20.    So be it.

Would you hold to the same position if the "expulsion without a trial" exception was not in my sample organization? I.e., it was a purely Robertian society, including a removal of an officer without a trial, via "or until"?

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Clarifying my question: By "same position" I mean that if the society included the "or until" exception to a trial requirement for removal from office, would some (any-?) lesser penalties also be excluded?  And if so which ones?  Where in the hierarchy of possible penalties would you place removal from office?

Edited by jstackpo
"from" replaced "for"

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Guest Zev

Removal from office is not a penalty but rather a political decision.

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3 hours ago, jstackpo said:

Clearly we differ of the philosophy of Chapter 20.    So be it.

Would you hold to the same position if the "expulsion without a trial" exception was not in my sample organization? I.e., it was a purely Robertian society, including a removal of an officer without a trial, via "or until"?

 

2 hours ago, jstackpo said:

Clarifying my question: By "same position" I mean that if the society included the "or until" exception to a trial requirement for removal from office, would some (any-?) lesser penalties also be excluded?  And if so which ones?  Where in the hierarchy of possible penalties would you place removal from office?

No, of course I would not hold the same position in such a case.

1 hour ago, Guest Zev said:

Removal from office is not a penalty but rather a political decision.

In a society which has the “or until” provision, yes.

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Just to be sure I have your position clearly in mind (and to close out the debate, I suppose, unless you or others have more to say), your contention is that the presence in the bylaws of an explicit statement (of the "or until" variety pertaining to election to membership) authorizing expulsion from membership by a 2/3 vote eliminates the requirement for a trial (I agree up to this point).  But also the presence of such a "2/3 and you are out" expulsion option means that any lesser penalties can be imposed without a due process type trial. (At this point we disagree.)

If I got it wrong, please correct me.

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Guest Zev
15 minutes ago, Josh Martin said:

In a society which has the “or until” provision, yes.

It makes no difference to me whether the bylaws say "or until" or "and until." Removal from office remains a political decision. If, however, the bylaws conferred the right to an office on all members then its denial would be a penalty.

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