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Complicated-not sure if/where RONR is applicable


BabbsJohnson
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I am expecting a "This isn't covered by RONR" response from someone, but all this detail leads to a valid question at the end.

I supposed if you don't' want to know the details,  the TL;DR for this would be: Can a board implement disciplinary measures that are not offered by RONR or the By-Laws? Meaning, can they make up disciplinary rules or methods either for the entire board and/or individual board members?

 

I received a letter from the Association lawyer, that if I wish to email management, or any other board member, that I have to copy the president as well.

I thought that censure, removal from officer positions, removal from committees (and in extreme cases, a recall) was the only means of discipline we have available, if RONR is adopted, and by-laws are silent. 

There is nothing in our by-laws that states anything about discipline, yet both the (unknown contents of the) conversation that prompted the letter, and the letter itself, as well as what the letter asks of me, seems like disciplinary action that is beyond their means to take. It at least seems like intimidation. There is no reason the president couldn't have emailed me, or brought this up as a censure, or something like that. A legal letter costs money. It had to get approved. 

 

Edited by .oOllXllOo.
Removing unnecessary details.
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57 minutes ago, .oOllXllOo. said:

The letter went on to state that now, if I wish to email management, or any other board member, that I have to copy the president as well. I've known the person in question for several years, as well as the president, and have had many long talks with both people about all kinds of board related stuff.

In my view, no rule in RONR prohibits a board from adopting a rule of this nature. Members do not have a parliamentary right to email other board members or management. As a consequence, adopting a rule concerning the sending of emails, even if for only one person, is not “discipline.”

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31 minutes ago, Josh Martin said:

In my view, no rule in RONR prohibits a board from adopting a rule of this nature. Members do not have a parliamentary right to email other board members or management. As a consequence, adopting a rule concerning the sending of emails, even if for only one person, is not “discipline.”

So... would it have to be an officially adopted rule, meaning through a motion at a meeting?

Something that would be in the minutes?

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Agreeing with Mr. Martin, yes, such an action would, if adopted as a rule, require some action at a meeting, not just an instruction (from whom?) to the lawyer. If it originated with the lawyer, it is also improper from a parliamentary perspective because the lawyer has no decision-making power; he is an employee who advises the organization.

However, it is possible that the lawyer is simply reminding you of some law or the like. If I were you, I'd ask these questions - why, who says, and what will you do if I don't listen?

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2 hours ago, .oOllXllOo. said:

So... would it have to be an officially adopted rule, meaning through a motion at a meeting?

Something that would be in the minutes?

That is the manner in which the board makes decisions, from a parliamentary perspective, and main motions are recorded in the minutes, so yes.

Although since the association’s lawyer is involved, I expect this will be more of a legal issue than a parliamentary one.

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12 hours ago, Joshua Katz said:

Agreeing with Mr. Martin, yes, such an action would, if adopted as a rule, require some action at a meeting, not just an instruction (from whom?) to the lawyer. If it originated with the lawyer, it is also improper from a parliamentary perspective because the lawyer has no decision-making power; he is an employee who advises the organization.

This statement that lawyers have no decision-making power seems quite presumptive, as lawyers are very often agents with full power to act on behalf of their clients (and very often not employees, in addition). There is also the possibility that a letter such as this may have legal effect even though it does not reflect a rule adopted by the board. But both of these considerations are legal questions beyond the scope of this forum.

Edit: It is also quite possible that the organization, being one that has "management", has an officer to whom full authority has been delegated, including possibly the authority to enact such a rule.

Edited by Alexis Hunt
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I agree that lawyers are often agents. But agency, as I understand it, generally applies toward third parties, not the internal affairs of an organization/corporation. Sure, a corporation can create a job called general counsel and SVP legal, but the power to make internal decisions will flow from the SVP part. But as a general matter, people and organizations seek legal opinions, and then act on them...or not. And sure, lawyers are often contractors, but I don't think that has much to do with the point I was making here.

I also agree that the organization might have someone to whom such decisions have been delegated, although I don't very often see boards delegate the power to discipline or create rules for directors. But I would think if that were the situation here, the OP would have said the letter came from the CEO, ED, or whatever.

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11 minutes ago, Alexis Hunt said:

This statement that lawyers have no decision-making power seems quite presumptive, as lawyers are very often agents with full power to act on behalf of their clients (and very often not employees, in addition). There is also the possibility that a letter such as this may have legal effect even though it does not reflect a rule adopted by the board. But both of these considerations are legal questions beyond the scope of this forum.

Edit: It is also quite possible that the organization, being one that has "management", has an officer to whom full authority has been delegated, including possibly the authority to enact such a rule.

Alexis, lots of things are theoretically possible, but it would be extremely unusual, almost unheard of, for a society or a board to adopt bylaws or even a lesser rule which gives one person, such as the organization's attorney, the unbridled right to make enforceable rules that can be enforced against the organization and the members of its board regarding communications between members of the society. If in fact such a situation exists here, I think the OP would be aware of it.

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3 minutes ago, Richard Brown said:

Alexis, lots of things are theoretically possible, but it would be extremely unusual, almost unheard of, for a society or a board to adopt bylaws or even a lesser rule which gives one person, such as the organization's attorney, the unbridled right to make enforceable rules that can be enforced against the organization and the members of its board regarding communications between members of the society. If in fact such a situation exists here, I think the OP would be aware of it.

In the larger corporate world, it is almost a matter of course that all but the most significant decisions of the organization are delegated to officers (and subsequently redelegated down the management chain). My first read of the original post is not that this is a large corporation, but I merely wish to point out that, in some contexts, this practice is far from unusual and indeed the norm.

Having looked again at the original post and noticed who the author is, and having regard to their history here, I do not believe that there is any further advice I can give them other than to engage an attorney of their own.

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10 hours ago, Alexis Hunt said:

In the larger corporate world, it is almost a matter of course that all but the most significant decisions of the organization are delegated to officers (and subsequently redelegated down the management chain).

Yes, but policies applying to the Board of Directors itself is generally viewed as a significant decision.

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To me, it seems like an overreaction to me simply telling the manager I didn’t appreciate her asking the lawyer in front of everyone if a condition I disclosed I had  (cptsd), as part of an apology for breaking down in tears at a recent meeting, could get me removed from the board, (he said yes, if they could prove I was unfit to serve) then went on to continue a casual conversation with the president and the rest of the board about my mental health, in what turned out to be highly probable was an illegal meeting..

It was extremely improper, and highly humiliating, and offensive to me.

Nothing in our bylaws says anything about the board being able to make those kinds of rules about board members, or a single board member.

 

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43 minutes ago, .oOllXllOo. said:

 Nothing in our bylaws says anything about the board being able to make those kinds of rules about board members, or a single board member.

 

See Mr. Martin's first reply.

Subtleties aside, it should be emphasized that boards govern organizations, while management manages them. Boards hire management, and can, subject to certain limitations in the rules or otherwise imposed by the body the board represents (membership, shareholders, homeowners, etc.) or in law, fire management. Management schemes all the time, it is true, to get the "right" people on the board, but that doesn't change the basic organizational structure. It is far too common for boards to allow management to push them around.

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15 hours ago, .oOllXllOo. said:

Nothing in our bylaws says anything about the board being able to make those kinds of rules about board members, or a single board member.

As I have said previously, nothing in RONR prevents a board from adopting a rule that a member (even a particular member) must copy the President when emailing management, or another board member. 

I am inclined to think that a conversation concerning a board member’s mental health is a violation of the rules of decorum.

Any legal issues involved are beyond the scope of this forum.

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2 hours ago, Josh Martin said:

I am inclined to think that a conversation concerning a board member’s mental health is a violation of the rules of decorum.

 

Because I can't tell from what was said, I'll just note that (if I am wrong Mr. Martin will correct me) this is true only if it takes place during a meeting, since the rules of decorum regulate conduct at meetings.

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59 minutes ago, Joshua Katz said:

Because I can't tell from what was said, I'll just note that (if I am wrong Mr. Martin will correct me) this is true only if it takes place during a meeting, since the rules of decorum regulate conduct at meetings.

I have no disagreement. I assumed the conversation took place during a meeting.

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1 hour ago, Joshua Katz said:

Because I can't tell from what was said, I'll just note that (if I am wrong Mr. Martin will correct me) this is true only if it takes place during a meeting, since the rules of decorum regulate conduct at meetings.

Yes, it took place during a meeting, and the president fully participated in the conversation, instead of stopping it.

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On 8/5/2019 at 11:46 PM, Alexis Hunt said:

This statement that lawyers have no decision-making power seems quite presumptive, as lawyers are very often agents with full power to act on behalf of their clients (and very often not employees, in addition). There is also the possibility that a letter such as this may have legal effect even though it does not reflect a rule adopted by the board. But both of these considerations are legal questions beyond the scope of this forum.

Edit: It is also quite possible that the organization, being one that has "management", has an officer to whom full authority has been delegated, including possibly the authority to enact such a rule.

How does this square with the rule prohibiting a board from delegating its powers?  Would this not have to be in the bylaws?

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On 8/5/2019 at 9:21 PM, Alexis Hunt said:

In the larger corporate world, it is almost a matter of course that all but the most significant decisions of the organization are delegated to officers (and subsequently redelegated down the management chain). My first read of the original post is not that this is a large corporation, but I merely wish to point out that, in some contexts, this practice is far from unusual and indeed the norm.

Having looked again at the original post and noticed who the author is, and having regard to their history here, I do not believe that there is any further advice I can give them other than to engage an attorney of their own.

It is not a large corporation. It is an HOA.

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Can a board subject a member to questioning by the association lawyer or to a discussion during a meeting regarding that member as if they were on trial, only without moving for a trial?

Can the board act as if a trial is happening and decide on some kind of disciplinary action without notifying the member the way one would be notified if the membership moved to behind a trial? Can you do this in the absence of the member?

Put that member on the agenda and discuss them while they are not there?

 

 

 

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52 minutes ago, .oOllXllOo. said:

Can a board subject a member to questioning by the association lawyer or to a discussion during a meeting regarding that member as if they were on trial, only without moving for a trial?

Can the board act as if a trial is happening and decide on some kind of disciplinary action without notifying the member the way one would be notified if the membership moved to behind a trial? Can you do this in the absence of the member?

Put that member on the agenda and discuss them while they are not there?

As a parliamentary matter, there is nothing preventing the lawyer from asking questions (although this will require the board’s permission). Similarly, however, there is nothing requiring the member to answer the questions.

The board likely does not have the power to discipline its own members at all unless the bylaws so provide. If the bylaws contain their own rules for discipline, those rules are controlling. Those rules may or may not require a trial, notice, or the presence of the accused. It may be helpful if the language concerning discipline in the bylaws is provided. RONR has its own rules on this subject, but the bylaws supersede RONR.

There is nothing, as a general rule, which prohibits the board from placing a member on the agenda and discussing the member while the member is not present.

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45 minutes ago, Josh Martin said:

As a parliamentary matter, there is nothing preventing the lawyer from asking questions (although this will require the board’s permission). Similarly, however, there is nothing requiring the member to answer the questions.

The board likely does not have the power to discipline its own members at all unless the bylaws so provide. If the bylaws contain their own rules for discipline, those rules are controlling. Those rules may or may not require a trial, notice, or the presence of the accused. It may be helpful if the language concerning discipline in the bylaws is provided. RONR has its own rules on this subject, but the bylaws supersede RONR.

There is nothing, as a general rule, which prohibits the board from placing a member on the agenda and discussing the member while the member is not present.

The by-laws are silent regarding discipline, outside of guidelines for removing a board member, or the entire board, both which would require a vote of the membership.

 

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11 hours ago, Josh Martin said:

As a parliamentary matter, there is nothing preventing the lawyer from asking questions (although this will require the board’s permission). Similarly, however, there is nothing requiring the member to answer the questions.

The board likely does not have the power to discipline its own members at all unless the bylaws so provide. If the bylaws contain their own rules for discipline, those rules are controlling. Those rules may or may not require a trial, notice, or the presence of the accused. It may be helpful if the language concerning discipline in the bylaws is provided. RONR has its own rules on this subject, but the bylaws supersede RONR.

There is nothing, as a general rule, which prohibits the board from placing a member on the agenda and discussing the member while the member is not present.

If the By-Laws do not give allowances for any kind of in-meeting discipline, or anything outside of what seems to be the standard way that HOA boards can remove a director, woudn't talking about a member at all, if the remarks were not part of a motion to censure, be considered "personal remarks" and not be allowed?

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On 8/9/2019 at 5:49 PM, .oOllXllOo. said:

The by-laws are silent regarding discipline, outside of guidelines for removing a board member, or the entire board, both which would require a vote of the membership.

Then only the membership may discipline members, and the procedures in the bylaws must be followed to do so.

16 hours ago, .oOllXllOo. said:

If the By-Laws do not give allowances for any kind of in-meeting discipline, or anything outside of what seems to be the standard way that HOA boards can remove a director, woudn't talking about a member at all, if the remarks were not part of a motion to censure, be considered "personal remarks" and not be allowed?

Comments regarding a member which are not germane to a pending motion are out of order in any event.

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