Can anything be done about libel in approved minutes?

[Louise]

We have a situation where our organization had a rather ... dysfunctional ... board for a year. Within this timeframe, the board minutes that were approved include gossip sessions about members and/or employees that the board was not happy with, complete with unfounded or outright false (likely just outright false) allegations about these members and employees. 

The new secretary is extremely concerned that these minutes pose the risk of a lawsuit for the organization if one of the members who has been "written up" ever reads them (which could happen if they are elected to the board in the future or if they ask to see them at any point); she wants to bury them in a dark pit somewhere or throw them into the flames of Mordor, but of course that's not possible. To make matters worse, there doesn't seem to be much else in the way of actions (motions and decisions) contained in the minutes AND some rather negative actions were taken on the part of the board on account of these false allegations (including the firing of an employee and discipline etc. of other members). 

Can anything be done with minutes that have already been approved but that contain problematic (and potentially lawsuit-inducing) material?

Edited December 8, 2019 at 04:19 PM by Louise

[Rob Elsman]

Consult with an attorney.

[Gary Novosielski]

2 hours ago, Louise said:

We have a situation where our organization had a rather ... dysfunctional ... board for a year. Within this timeframe, the board minutes that were approved include gossip sessions about members and/or employees that the board was not happy with, complete with unfounded or outright false (likely just outright false) allegations about these members and employees. 

The new secretary is extremely concerned that these minutes pose the risk of a lawsuit for the organization if one of the members who has been "written up" ever reads them (which could happen if they are elected to the board in the future or if they ask to see them at any point); she wants to bury them in a dark pit somewhere or throw them into the flames of Mordor, but of course that's not possible. To make matters worse, there doesn't seem to be much else in the way of actions (motions and decisions) contained in the minutes AND some rather negative actions were taken on the part of the board on account of these false allegations (including the firing of an employee and discipline etc. of other members). 

Can anything be done with minutes that have already been approved but that contain problematic (and potentially lawsuit-inducing) material?

That's a legal question, which only an attorney can answer.  I am not one.

Still, I'm guessing that it would a hard case to make since the minutes are presumably not made public, making it difficult to establish how this person was harmed. 

RONR does advise against making public any information about disciplining members, since doing so might create grounds for a lawsuit.  For example, it may become necessary to notify a vendor that a particular person who was expelled for theft is no longer a member of the society, but beyond that simple fact, it would be a mistake to say anything about the reasons why.  

In general, minutes are a record of what was done, not what was said, so in the future it would be well to remember this rule, and not include any details of debate.  All that matters is whether a given motion passed or not.  It's possible that the text of the motion or resolution might contain negative information about the accused member, but if that's an unavoidable situation, it would be included in the minutes, but they would remain an internal record of the society.

 

Edited December 8, 2019 at 07:11 PM by Gary Novosielski

[Joshua Katz]

I'm puzzled by the above responses. Sure, liability is a legal question, but "what can we do?" strikes me as parliamentary, and rather easy to answer. Discussion does not belong in the minutes. Therefore, discussion, including whatever people are worried about, should be removed from past minutes by the motion to amend something previously adopted. It requires a 2/3 vote, a majority vote with notice, or a majority of the entire membership (of the assembly whose minutes they are) voting in the affirmative, any one of which will suffice. 

You should not change things that actually happened and belong in the minutes, such as the language of motions. But "Debate ensued, during which Mr. A said that Mrs. B was sleeping around" does not belong in the minutes. The minutes are a record of what was done, not what was said.

[Josh Martin]

3 hours ago, Louise said:

Can anything be done with minutes that have already been approved but that contain problematic (and potentially lawsuit-inducing) material?

The minutes could be amended to remove the material that doesn’t belong there - that is, pretty much anything other than actions taken by the board.

It seems some of the material in question is actions by the board, however, and not much can be done about that

Edited December 8, 2019 at 07:38 PM by Josh Martin

[Atul Kapur]

52 minutes ago, Joshua Katz said:

Therefore, discussion, including whatever people are worried about, should be removed from past minutes by the motion to amend something previously adopted.

While I agree with you, Mr. K, I do have a question for you: What becomes of those portions that are removed? Since we are told that even things that are Rescinded and Expunged from the Minutes "must not be blotted or cut out so that they cannot be read", would that also apply to the portions of the minutes that are removed by way of ASPA?

Edited December 8, 2019 at 08:15 PM by Atul Kapur
Clarifying that I agree with Mr. Katz's answer

[Joshua Katz]

5 minutes ago, Atul Kapur said:

What becomes of those portions that are removed? Since we are told that even things that are Rescinded and Expunged from the Minutes "must not be blotted or cut out so that they cannot be read", would that also apply to the portions of the minutes that are removed by way of ASPA?

I would think so: they would be single-crossed-out, with a notation as to the date of the amendment - and the minutes of the meeting where ASPA is adopted will contain the motion that tells the story, in any event. What will be admissible in litigation is, of course, a legal question.

[Gary Novosielski]

It is apparent that any attempt to remove the 'troublesome' portions of the minutes would likely have the effect of drawing much greater attention to them.

That's the principal reason I didn't suggest it.

[Rob Elsman]

If an attorney has not examined the papers, it isn't even certain that there is anything libelous about them.

[Joshua Katz]

1 hour ago, Gary Novosielski said:

It is apparent that any attempt to remove the 'troublesome' portions of the minutes would likely have the effect of drawing much greater attention to them.

 

Maybe, but they still don't belong there if they are discussion.

The organization should consult an attorney, though, about whether there's anything to worry about, and if so, whether the change will make things better or worse. 

[Gary Novosielski]

17 hours ago, Joshua Katz said:

Maybe, but they still don't belong there if they are discussion.

 

I fully agree.  I do question whether, in the general case, is is worth going back to amend minutes previously approved to remove discussion (by lining it out so that the discussion is still visible), or whether it is better to simply recognize the proper way of doing things, and follow the rule going forward.

[Guest Zev]

 

Quote

 

Rescind and Expunge from the Minutes

On extremely rare occasions when it is desired not only to rescind action but also to express the strongest disapproval, a member may move to Rescind and Expunge from the Minutes (or the Record). Adoption of this motion requires an affirmative vote of a majority of the entire membership, and may be inadvisable unless the support is even greater. Even a unanimous vote at a meeting is insufficient if that vote is not a majority of the entire membership. If such a motion is adopted, the secretary, in the presence of the assembly, draws a single line through or around the offending words in the minutes, and writes across them the words, "Rescinded and Ordered Expunged," with the date and his signature. In the recorded minutes the words that are expunged must not be blotted or cut out so that they cannot be read, since this would make it impossible to verify whether more was expunged than ordered. In any published record of the proceedings, the expunged material is omitted. Rather than expunging, it is usually better to rescind the previous action and then, if advisable, to adopt a resolution condemning the action which has been rescinded.

 

RONR 11th edition, page 310. (My emphasis.)

It should be observed that if the offending words are not expunged then the possibility will always exist that if the minutes in question are ever published that they will include the offending words. As a cautionary measure perhaps the marginal notation "Rescinded and Ordered Expunged" should be followed by "Stricken Words Are Never To Be Published" or something similar. Having done this, in my opinion, the organization has done everything it can to disavow the offending words short of setting fire to the minutes.

[Joshua Katz]

4 hours ago, Gary Novosielski said:

I fully agree.  I do question whether, in the general case, is is worth going back to amend minutes previously approved to remove discussion (by lining it out so that the discussion is still visible), or whether it is better to simply recognize the proper way of doing things, and follow the rule going forward.

A fair point, and probably not, in the general case. But it's a good justification if you have things you want taken out anyway. 

[J. J.]

On 12/8/2019 at 2:38 PM, Josh Martin said:

The minutes could be amended to remove the material that doesn’t belong there - that is, pretty much anything other than actions taken by the board.

It seems some of the material in question is actions by the board, however, and not much can be done about that

The motion doing so would have to be recorded in the current minutes.

[Louise]

Thanks, all. I will pass on this information to those who will need to address this situation.

 

 

Edited December 13, 2019 at 04:15 PM by Louise