Executive session

[Guest LRB]

If someone violates the executive session by talking about it in public, what kind of recourse is there?

[Chris Harrison]

Assuming your Bylaws don't say otherwise the consequences can range from censure (a slap on the wrist merely stating the assembly is not happy with the offending member) to being expelled from the organization.  See RONR Chapter XX for details.

[jstackpo]

Whatever the assembly thinks is appropriate  --  see Chapter XX.

[Richard Brown]

29 minutes ago, jstackpo said:

Whatever the assembly thinks is appropriate  --  see Chapter XX.

. . . Within limits, of course! Unless your bylaws provide other options, you are limited to censure, suspension, expulsion, and removal from office for officers. A monetary fine and other forms of discipline cannot be imposed unless authorized in the bylaws.

[jstackpo]

Are punishments actually limited to those?  P. 643 says "generally fall under..." which seems to leave room for others.  Also 667-668 allows the assembly to set a penalty by motion.

[Josh Martin]

3 minutes ago, jstackpo said:

Are punishments actually limited to those?  P. 643 says "generally fall under..." which seems to leave room for others.  Also 667-668 allows the assembly to set a penalty by motion.

What other punishments did you have in mind?

[Richard Brown]

43 minutes ago, jstackpo said:

Are punishments actually limited to those?  P. 643 says "generally fall under..." which seems to leave room for others.  Also 667-668 allows the assembly to set a penalty by motion.

With possibly one exception, I think punishments are limited to those (censure, suspension, expulsion and removal from office) unless authorized in the bylaws. I think you are overlooking a key phrase in the language on page 643 about the punishments that can be imposed.  Here is the full quote from lines 12-15.  I have highlighted what I think is a key provision:  "Punishments that a society can impose generally fall under the headings of censure,* fine (if authorized in the bylaws), suspension, or expulsion. The extreme penalty that an organization or society can impose on a member is expulsion."

That provision makes clear to me that a fine cannot be imposed unless authorized in the bylaws.  It is clear and unambiguous.  I think the imposition of other forms of discipline which require any kind of affirmative action on the part of the member being disciplined would be prohibited unless authorized in the bylaws because it would require something more to remain a member than is required by the bylaws.  Being ordered to walk up and down Main Street wearing a sandwich sign that says "I said something that embarrassed the Main Street Men's Club" would be prohibited because the society has no authority, under the bylaws, to require the wearing of a sandwich sign by a member as a condition  of membership.  It is the same rationale used when RONR says specifically that a fine (or a special assessment) cannot be required unless authorized in the bylaws.  To permit it would be to permit the society to require more from some members (without authorization) than other members.  The bylaws define and limit a member's  liability to the society.

The one possible exception MIGHT be in the way of an apology.  RONR says, on page 647 on lines 14-20 that for an offense  committed in a meeting an apology can be ordered. Here is the complete statement:  " The case may be sufficiently resolved by an apology or a withdrawal of objectionable statements or remarks by the offender; but if not, any member can move to order a penalty, or the chair can first ask, "What penalty shall be imposed on the member?" A motion offered in a case of this kind can propose, for example, that the offender be required to make an apology, that he be censured, that he be required to leave the hall during the remainder of the meeting or until he is prepared to apologize, that his rights of membership be suspended for a time, or that he be expelled from the organization."   I question whether an apology could actually be ordered unless authorized in the bylaws, but it is what the book says.

Another troubling  passage in the book is on page 668 regarding requiring an accused officer to repay funds wrongfully misappropriated  from the society.  Here is the full  statement:  "The usual possible penalties for an officer are censure or removal from office, although in special circumstances others may be appropriate (for example, to repay into the society's treasury funds that the officer has been found guilty of misappropriating, perhaps with an added fine). For all of these, including removal from office, a majority vote is required. Penalties appropriate in disciplinary proceedings against members are discussed on page 643. For expulsion, a two-thirds vote is required."

Two comments about the foregoing provision:  First, I think that, based on other provisions in RONR, it should be clear that a fine cannot be imposed unless authorized in the bylaws.  The  prohibition against fines unless authorized in the bylaws on page 643 is clear and unambiguous. The second point has to do with ordering the repayment of misappropriated funds.  I acknowledge that is what the book says and it seems appropriate, but I question whether the society actually has the power to order repayment.  Perhaps.   It certainly does not have the power to impose it in the sense that a court could order it, but perhaps it can be ordered as a condition of continued membership.

The bottom line is that, for all practical purposes, the only punishments that a society can impose on members without specific authorization in the bylaws is censure, suspension, expulsion, removal from office, and possibly the requirement of an apology and repayment of misappropriated funds.  I think it is clear that a fine or assessment cannot be imposed unless authorized in the bylaws.

[Josh Martin]

2 hours ago, Richard Brown said:

That provision makes clear to me that a fine cannot be imposed unless authorized in the bylaws.  It is clear and unambiguous.  I think the imposition of other forms of discipline which require any kind of affirmative action on the part of the member being disciplined would be prohibited unless authorized in the bylaws because it would require something more to remain a member than is required by the bylaws.  Being ordered to walk up and down Main Street wearing a sandwich sign that says "I said something that embarrassed the Main Street Men's Club" would be prohibited because the society has no authority, under the bylaws, to require the wearing of a sandwich sign by a member as a condition  of membership.  It is the same rationale used when RONR says specifically that a fine (or a special assessment) cannot be required unless authorized in the bylaws.  To permit it would be to permit the society to require more from some members (without authorization) than other members.  The bylaws define and limit a member's  liability to the society.

I don’t think I would go so far as saying that “the imposition of other forms of discipline which require any kind of affirmative action on the part of the member being disciplined would be prohibited unless authorized in the bylaws.” As you say, fines are clearly prohibited. The text does not say, however, that other forms of discipline are prohibited generally. Instead, it says that the extreme penalty that a society may impose is expulsion. I don’t think there is anything prohibiting a society from ordering that the offending member wear the sign in question, or perhaps that the member performs a certain number of hours of community service, or in some other manner provides service to the society. If the members finds these terms unacceptable, he is free to resign from the society.

I do think that there are some limits. The fact that expulsion is the extreme penalty means that a member can evade any penalty by resigning, since the society may not impose penalties on persons who are no longer members. It also stands to reason that certain, particularly extreme penalties may be properly viewed as more extreme than expulsion and improper for that reason. Similarly, since fines cannot be imposed, this seems to prohibit other penalties which are, in effect, a fine, such as requiring members to make a donation.

2 hours ago, Richard Brown said:

The one possible exception MIGHT be in the way of an apology.  RONR says, on page 647 on lines 14-20 that for an offense  committed in a meeting an apology can be ordered. Here is the complete statement:  " The case may be sufficiently resolved by an apology or a withdrawal of objectionable statements or remarks by the offender; but if not, any member can move to order a penalty, or the chair can first ask, "What penalty shall be imposed on the member?" A motion offered in a case of this kind can propose, for example, that the offender be required to make an apology, that he be censured, that he be required to leave the hall during the remainder of the meeting or until he is prepared to apologize, that his rights of membership be suspended for a time, or that he be expelled from the organization."   I question whether an apology could actually be ordered unless authorized in the bylaws, but it is what the book says.

I see nothing prohibiting the assembly from ordering a member to make an apology.

2 hours ago, Richard Brown said:

Another troubling  passage in the book is on page 668 regarding requiring an accused officer to repay funds wrongfully misappropriated  from the society.  Here is the full  statement:  "The usual possible penalties for an officer are censure or removal from office, although in special circumstances others may be appropriate (for example, to repay into the society's treasury funds that the officer has been found guilty of misappropriating, perhaps with an added fine). For all of these, including removal from office, a majority vote is required. Penalties appropriate in disciplinary proceedings against members are discussed on page 643. For expulsion, a two-thirds vote is required."

Two comments about the foregoing provision:  First, I think that, based on other provisions in RONR, it should be clear that a fine cannot be imposed unless authorized in the bylaws.  The  prohibition against fines unless authorized in the bylaws on page 643 is clear and unambiguous. The second point has to do with ordering the repayment of misappropriated funds.  I acknowledge that is what the book says and it seems appropriate, but I question whether the society actually has the power to order repayment.  Perhaps.   It certainly does not have the power to impose it in the sense that a court could order it, but perhaps it can be ordered as a condition of continued membership.

I don’t find this passage troubling at all. I do not think that ordering a member to repay the society’s funds, which the member spent without authorization, is the same as ordering a fine as punishment for an offense.

2 hours ago, Richard Brown said:

The bottom line is that, for all practical purposes, the only punishments that a society can impose on members without specific authorization in the bylaws is censure, suspension, expulsion, removal from office, and possibly the requirement of an apology and repayment of misappropriated funds.  I think it is clear that a fine or assessment cannot be imposed unless authorized in the bylaws.

No one has disputed that a fine or assessment cannot be imposed unless authorized in the bylaws. As you say, RONR is unambiguous on this point.

I do not think that a sentence which states that punishments generally fall under a list of certain items, however, means that the list is exhaustive. I would also note that, in my view, there is no “possibly” regarding the apology and the repayment of misappropriated funds. The text specifically notes that these are options.

Edited August 13, 2019 at 04:51 PM by Josh Martin

[Atul Kapur]

I agree with Mr. Martin. 

Mr. Brown's reading of the quoted passages is too restrictive. The limit that a fine can only be ordered if allowed in the bylaws does not apply to other punishments such as wearing the sandwich board. I think if the offender refuses to wear the sandwich board, then they can resign or the assembly can conduct a new trial on the offence of disobeying a valid order if the assembly. Presumably, the punishment this time would be expulsion.

I also agree that there is a difference between repaying misappropriated funds and a fine.

[Richard Brown]

43 minutes ago, Atul Kapur said:

I agree with Mr. Martin. 

Mr. Brown's reading of the quoted passages is too restrictive. The limit that a fine can only be ordered if allowed in the bylaws does not apply to other punishments such as wearing the sandwich board. I think if the offender refuses to wear the sandwich board, then they can resign or the assembly can conduct a new trial on the offence of disobeying a valid order if the assembly. Presumably, the punishment this time would be expulsion.

I also agree that there is a difference between repaying misappropriated funds and a fine.

I stand by my opinion that with the possible exception of an apology and paying restitution, additional "punishments" (other than censure, suspension,  expulsion and removal  from office) cannot be imposed unless authorized in the bylaws. 

I say that not just as a matter of imposing discipline, but because the society itself lacks the authority to impose any costs or conditions of continued membership other than those permitted in the bylaws.  A society cannot,  for example, require the payment of an assessment or a fine or some type of "community service" unless authorized in the bylaws.  It cannot require the payment of a special fee for attending the annual meeting (or  any other meeting) unless authorized in the bylaws. 

Similarly,  I think it cannot require the performance of any jobs, duties, public service or punishments for continued membership unless authorized in the bylaws.  I think the requirement that a member hold a banner  or wear a "sandwich sign" and march up and down Main Street or perform eight hours of community service is not permitted for any reason... discipline or otherwise... unless permitted in the bylaws.  It should make no difference if the marching with the sign is a condition of attending the annual meeting or in the form of punishment for having committed some "wrong" against the society.  The  society has no power to require anything from a member that is not authorized in the bylaws.

 

[Atul Kapur]

Richard, punishments are different from imposing conditions on attending the annual meeting. You are conflating punishments with the concept of imposing conditions of membership. I believe this conflation is incorrect.

The use of the words "for example" when discussing possible punishments make it clear that the lists are not exhaustive.

The statement "censure, fine (if authorized in the bylaws), " clearly indicates, by use of the commas, that this requirement only applies to a fine.

So imposing the "wear a sandwich board" punishment is valid. Consider it a two-step method of expulsion, which you agree is a permissible punishment. If the offender refuses to comply with wearing a sandwich board, then the assembly could conduct another trial, this time on the offence of non-compliance; the penalty on the second trial would be expulsion.

Looking at this issue another way: your misgivings about the authority to demand an apology or repayment of misappropriated funds go away if you accept the concept that the assembly has the authority to order unmentioned punishments (other than fines). Occam's Razor says that strongly suggests it's the correct interpretation. 

[Chris Harrison]

I suspect Guest LRB got more than he or she bargained for. 

Definitely food for thought though.

[George Mervosh]

19 minutes ago, Chris Harrison said:

I suspect Guest LRB got more than he or she bargained for. 

Definitely food for thought though.

Thankfully Mr. Gerber and Mr. Honemann haven't instituted a maximum word count for this quarterly time interval.    Oh, and i agree with Mr. Martin's last response.

[BabbsJohnson]

6 hours ago, Richard Brown said:

With possibly one exception, I think punishments are limited to those (censure, suspension, expulsion and removal from office) unless authorized in the bylaws. I think you are overlooking a key phrase in the language on page 643 about the punishments that can be imposed.  Here is the full quote from lines 12-15.  I have highlighted what I think is a key provision:  "Punishments that a society can impose generally fall under the headings of censure,* fine (if authorized in the bylaws), suspension, or expulsion. The extreme penalty that an organization or society can impose on a member is expulsion."

That provision makes clear to me that a fine cannot be imposed unless authorized in the bylaws.  It is clear and unambiguous.  I think the imposition of other forms of discipline which require any kind of affirmative action on the part of the member being disciplined would be prohibited unless authorized in the bylaws because it would require something more to remain a member than is required by the bylaws.  Being ordered to walk up and down Main Street wearing a sandwich sign that says "I said something that embarrassed the Main Street Men's Club" would be prohibited because the society has no authority, under the bylaws, to require the wearing of a sandwich sign by a member as a condition  of membership.  It is the same rationale used when RONR says specifically that a fine (or a special assessment) cannot be required unless authorized in the bylaws.  To permit it would be to permit the society to require more from some members (without authorization) than other members.  The bylaws define and limit a member's  liability to the society.

The one possible exception MIGHT be in the way of an apology.  RONR says, on page 647 on lines 14-20 that for an offense  committed in a meeting an apology can be ordered. Here is the complete statement:  " The case may be sufficiently resolved by an apology or a withdrawal of objectionable statements or remarks by the offender; but if not, any member can move to order a penalty, or the chair can first ask, "What penalty shall be imposed on the member?" A motion offered in a case of this kind can propose, for example, that the offender be required to make an apology, that he be censured, that he be required to leave the hall during the remainder of the meeting or until he is prepared to apologize, that his rights of membership be suspended for a time, or that he be expelled from the organization."   I question whether an apology could actually be ordered unless authorized in the bylaws, but it is what the book says.

Another troubling  passage in the book is on page 668 regarding requiring an accused officer to repay funds wrongfully misappropriated  from the society.  Here is the full  statement:  "The usual possible penalties for an officer are censure or removal from office, although in special circumstances others may be appropriate (for example, to repay into the society's treasury funds that the officer has been found guilty of misappropriating, perhaps with an added fine). For all of these, including removal from office, a majority vote is required. Penalties appropriate in disciplinary proceedings against members are discussed on page 643. For expulsion, a two-thirds vote is required."

Two comments about the foregoing provision:  First, I think that, based on other provisions in RONR, it should be clear that a fine cannot be imposed unless authorized in the bylaws.  The  prohibition against fines unless authorized in the bylaws on page 643 is clear and unambiguous. The second point has to do with ordering the repayment of misappropriated funds.  I acknowledge that is what the book says and it seems appropriate, but I question whether the society actually has the power to order repayment.  Perhaps.   It certainly does not have the power to impose it in the sense that a court could order it, but perhaps it can be ordered as a condition of continued membership.

The bottom line is that, for all practical purposes, the only punishments that a society can impose on members without specific authorization in the bylaws is censure, suspension, expulsion, removal from office, and possibly the requirement of an apology and repayment of misappropriated funds.  I think it is clear that a fine or assessment cannot be imposed unless authorized in the bylaws.

When you say “expulsion”, that must be limited by what the by-laws say, correct?

If the by-laws, for instance, say nothing of “expulsion from the membership” as an option, and that the only way to “expel” someone (let’s say a board member from an HOA board) is to use the guidelines to remove them by a vote of the membership (the homeowners) then that is the only “expulsion” possible, correct?

Edited August 13, 2019 at 09:37 PM by .oOllXllOo.

[BabbsJohnson]

9 hours ago, Guest LRB said:

If someone violates the executive session by talking about it in public, what kind of recourse is there?

Guest LRB, what your local “sunshine” or open meeting laws say about Executive Session and what is considered “confidential” information might be of importance as well.

If a typically open meeting topic is discussed in Executive Session, it might not be considered that which is required to be kept confidential. (That is not really about parliamentary procedure though, but what your state or local laws say).

 

Adding:

 It may really depend on what they spoke about.  Did they expose someone’s personal contact or address information, for example?  Someone’s financial information?  Details about a pending contract? Details about a pending lawsuit? Details about leins, foreclosures, or payment plans? This is the kind of information that many states list for HOA boards, for example, as what must be kept confidential that is spoken about in executive session.  Again... this has not much to do, if anything, with parliamentary rules, but with your local, or state laws.

Not all boards adhere to their local laws.

Activity that violates the law, and this is pure speculation, I’d guess (as a non-lawyer type person) would not be protected, or expected to be kept confidential.

(Might want to ask at a legal advice forum)

Edited August 13, 2019 at 09:43 PM by .oOllXllOo.
Additional info

[Gary Novosielski]

10 hours ago, jstackpo said:

Are punishments actually limited to those?  P. 643 says "generally fall under..." which seems to leave room for others.  Also 667-668 allows the assembly to set a penalty by motion.

[BabbsJohnson]

5 hours ago, Richard Brown said:

I stand by my opinion that with the possible exception of an apology and paying restitution, additional "punishments" (other than censure, suspension,  expulsion and removal  from office) cannot be imposed unless authorized in the bylaws. 

When you say “expulsion”, do you mean the board itself can vote a board member out by a two-thirds vote, even if the by-laws specify a specific (and different) requirement for removing a board member from being a “board member”?

And furthermore...if RONR overrides the By-Laws, can they do such a thing without a trial?

 

Edited August 14, 2019 at 12:38 AM by .oOllXllOo.

[Gary Novosielski]

When would RONR ever override the bylaws?

 

[BabbsJohnson]

I guess... never?

And with that logic, it would never override state law either, correct ?

 

[Gary Novosielski]

Correct, with respect to state laws governing parliamentary procedure, at least.

[Josh Martin]

16 hours ago, .oOllXllOo. said:

When you say “expulsion”, that must be limited by what the by-laws say, correct?

 If the by-laws, for instance, say nothing of “expulsion from the membership” as an option, and that the only way to “expel” someone (let’s say a board member from an HOA board) is to use the guidelines to remove them by a vote of the membership (the homeowners) then that is the only “expulsion” possible, correct?

The term “expulsion” refers to removal from the society. This does not need to be specifically listed in the bylaws in order to be an option. In an HOA, however, I imagine this is not generally an option, since membership in the HOA is based upon ownership of property as opposed to joining a voluntary society. Therefore, I imagine any “expulsion” from an HOA would be a legal process rather than a parliamentary one.

Removal from the board is not expulsion. In any event, however, if the bylaws provide the procedure for removing a person from the board, then that is the procedure which must be followed.

16 hours ago, .oOllXllOo. said:

Guest LRB, what your local “sunshine” or open meeting laws say about Executive Session and what is considered “confidential” information might be of importance as well.

Well, depending on the type of organization it is. We do not know whether Guest LRB’s organization is the type of organization to which such laws apply. Generally, they tend to apply to public bodies and HOAs (or similar organizations).

12 hours ago, .oOllXllOo. said:

When you say “expulsion”, do you mean the board itself can vote a board member out by a two-thirds vote, even if the by-laws specify a specific (and different) requirement for removing a board member from being a “board member”?

No.

12 hours ago, .oOllXllOo. said:

And furthermore...if RONR overrides the By-Laws, can they do such a thing without a trial?

RONR does not override the bylaws (and RONR doesn’t authorize a subordinate board to remove its own members anyway).

12 hours ago, .oOllXllOo. said:

I guess... never?

And with that logic, it would never override state law either, correct ?

Correct.