Confidentiality of Charges/Disciplinary Action

[JayW]

Our Bylaws give the Board the authority to hear charges, conduct investigations and trials, and impose discipline of members up to a six-month suspension. They can recommend expulsion, which is voted on by the membership.

I understand that investigations and actions leading up to a trial are considered to be held in executive session. Does that apply to the charges as well? Can the accused share with other people (not part of the Board, possibly not part of the society) the charges filed against them? 

After the trial, the Board only shares action taken if it's necessary to publicize. Obviously if they recommend expulsion, the membership must be informed of the fact so they can be prepared to vote. Should the membership be informed of a suspension, and the grounds on which it was imposed? 

Is the accused (now convicted) under a permanent gag order? Can they share with other people the fact that they were disciplined and why? Or does that open them up to new charges of violating executive session? (Obviously if they end up expelled there's nothing more the society can do to them, but in the case of a suspended member they are still subject to the rules of the society.) Does it matter if they mention they had a witness who testified on their behalf? (Does it matter further if the charges are a matter of public record?) 

[Josh Martin]

58 minutes ago, JayW said:

I understand that investigations and actions leading up to a trial are considered to be held in executive session. Does that apply to the charges as well?

Yes.

58 minutes ago, JayW said:

Can the accused share with other people (not part of the Board, possibly not part of the society) the charges filed against them? 

No.

58 minutes ago, JayW said:

After the trial, the Board only shares action taken if it's necessary to publicize. Obviously if they recommend expulsion, the membership must be informed of the fact so they can be prepared to vote. Should the membership be informed of a suspension, and the grounds on which it was imposed? 

RONR neither requires nor prohibits this. The board could choose to disclose this information. Alternately, the membership could order the board to disclose this information. (In either case, it would be advisable for the membership to enter executive session when hearing this information.)

The information certainly cannot be shared outside of the society - except that if the member was expelled or removed from office, the society may share the fact that this penalty was imposed (but not the reasons why), to the extent that doing so is necessary to protect the society or other societies.

58 minutes ago, JayW said:

Is the accused (now convicted) under a permanent gag order?

Yes.

58 minutes ago, JayW said:

Can they share with other people the fact that they were disciplined and why?

No.

58 minutes ago, JayW said:

Or does that open them up to new charges of violating executive session?

Yes.

58 minutes ago, JayW said:

Does it matter if they mention they had a witness who testified on their behalf?

No.

58 minutes ago, JayW said:

(Does it matter further if the charges are a matter of public record?) 

In such a case, I suppose the member could speak about the charges to the extent that they are a matter of public record, however, the accused still cannot discuss anything that happened in executive session.

As an example, RONR lists the following as one reason why Mr. N is being disciplined:

"In that on or about the evening of August 12, 20__, in the Matterhorn Restaurant, Mr. N was seen by patrons to be the apparent provoker of a needless and violent disturbance, causing damage to the furnishings." (RONR, 11th ed., pg. 660)

The fact that this incident at the Matterhorn occurred is quite likely common knowledge, at least to persons who were at the restaurant, and quite possibly to others (perhaps it was picked up in a local newspaper). The member would be free to discuss the incident itself with others. He could not disclose, however, the fact that the society disciplined him, that this was the charge, what was discussed in the trial, or other such details pertaining to the disciplinary procedures.

For further review, here are citations from RONR regarding executive session generally, and rules concerning the secrecy of disciplinary proceedings specifically.

"An executive session in general parliamentary usage has come to mean any meeting of a deliberative assembly, or a portion of a meeting, at which the proceedings are secret...

A member of a society can be punished under disciplinary procedure if he violates the secrecy of an executive session." (RONR, 11th ed., pgs. 95-96)

"A society has the right to investigate the character of its members and officers as may be necessary to the enforcement of its own standards. But neither the society nor any member has the right to make public any information obtained through such investigation; if it becomes common knowledge within the society, it should not be revealed to any persons outside the society. Consequently, a trial must always be held in executive session, as must the introduction and consideration of all resolutions leading up to the trial.

If (after trial) a member is expelled or an officer is removed from office, the society has the right to disclose that fact—circulating it only to the extent required for the protection of the society or, possibly, of other organizations. Neither the society nor any of its members has the right to make public the charge of which an officer or member has been found guilty, or to reveal any other details connected with the case. To make any of the facts public may constitute libel. A trial by the society cannot legally establish the guilt of the accused, as understood in a court of law; it can only establish his guilt as affecting the society's judgment of his fitness for membership or office." (RONR, 11th ed., pgs. 655)

Edited April 4, 2020 at 11:10 PM by Josh Martin

[JayW]

Thanks. It seems odd that a society can punish someone and that person can't ever speak on their own behalf about it, but I guess it is what it is. (I did read the section on page 655 but since it talked about libel, I wasn't sure it would apply to the accused, since you can't libel yourself.)

In the event that the Board decided to inform the membership about a suspension, would that have to be done with the permission of the accused, as would be needed to hold the hearing in an open session? (Which I didn't actually see in the book, but it's been mentioned here.) 

[Josh Martin]

16 minutes ago, JayW said:

In the event that the Board decided to inform the membership about a suspension, would that have to be done with the permission of the accused, as would be needed to hold the hearing in an open session?

No, the permission of the accused would not be needed. RONR places limits on the information on disciplinary procedures which may be shared outside the society. It does not limit the information which may be shared within the society. Therefore, the ordinary rules on executive session apply.

[JayW]

29 minutes ago, Josh Martin said:

No, the permission of the accused would not be needed. RONR places limits on the information on disciplinary procedures which may be shared outside the society. It does not limit the information which may be shared within the society. Therefore, the ordinary rules on executive session apply.

Even though in this case it wasn't the society that handled the discipline? If so, following that logic, the Board minutes for the executive session/trial should be available to the entire membership without a request?

 

[Josh Martin]

2 hours ago, JayW said:

Even though in this case it wasn't the society that handled the discipline?

Correct.

2 hours ago, JayW said:

If so, following that logic, the Board minutes for the executive session/trial should be available to the entire membership without a request?

Nope.

The rules work like this:

1.) For executive session (all executive sessions), nothing from the executive session may be disclosed outside the assembly unless the assembly agrees to do so (or it is ordered to do so by a superior assembly).

2.) For disciplinary procedures, in addition to the usual rules for executive session, the information cannot be shared outside of the society (with certain exceptions, as I've mentioned before).

[Gary Novosielski]

3 hours ago, Josh Martin said:

If (after trial) a member is expelled or an officer is removed from office, the society has the right to disclose that fact—circulating it only to the extent required for the protection of the society or, possibly, of other organizations. Neither the society nor any of its members has the right to make public the charge of which an officer or member has been found guilty, or to reveal any other details connected with the case. To make any of the facts public may constitute libel. A trial by the society cannot legally establish the guilt of the accused, as understood in a court of law; it can only establish his guilt as affecting the society's judgment of his fitness for membership or office." (RONR, 11th ed., pgs. 655)

As a practical matter, if a member is expelled, and chooses to make public the details of the charges and specifications, the trial, and what have you, it is going to be relatively difficult to impose further discipline upon the former member.

[Josh Martin]

9 hours ago, Gary Novosielski said:

As a practical matter, if a member is expelled, and chooses to make public the details of the charges and specifications, the trial, and what have you, it is going to be relatively difficult to impose further discipline upon the former member.

Yes, I agree that, if the member is expelled, there is nothing further that can be done to this person as a parliamentary matter. (I suppose the society could adopt a motion to censure, for whatever that's worth.)

The unstated assumption in these rules appears to be that the accused will want to keep these matters private, thus why the text focuses on what the society can and cannot do (rather than what the accused can and cannot do).

Edited April 5, 2020 at 02:41 PM by Josh Martin

[JayW]

So the Board meets in executive session to hold a trial, and can then decide to make the contents of that executive session available to the Club, including the charges filed, evidence presented, discussion, vote, and disciplinary action taken, even if they find the accused not guilty. This would be considered an executive session of the Club (even if it occurred outside a meeting) so it could not be shared with any non-members.

In that case, is the accused then free to discuss the matter with members of the Club? 

[JayW]

1 hour ago, Josh Martin said:

 

The unstated assumption in these rules appears to be that the accused will want to keep these matters private, thus why the text focuses on what the society can and cannot do (rather than what the accused can and cannot do).

Which is the issue here, because the Board convicted a member of something they (very easily proven) did not do. So there's no recourse for the member to clear their name, and no way for the membership to know the Board acted not in good faith. 

[Gary Novosielski]

It can't be considered an executive session if it's not within a meeting.

And it's a little odd that the Board has the power to discipline members--a power normally reserved to the membership itself.

Edited April 5, 2020 at 04:04 PM by Gary Novosielski

[JayW]

4 minutes ago, Gary Novosielski said:

It can't be considered an executive session if it's not within a meeting.

And it's a little odd that the Board has the power to discipline members--a power normally reserved to the membership itself.

The results of a trial have at times been announced to the membership via a written (online) communication from the President. 

Our Bylaws do give the Board the authority over discipline; we have 800+ members and only meet once a year, so having the Board handle it is usually more efficient timely.

[Josh Martin]

3 hours ago, JayW said:

So the Board meets in executive session to hold a trial, and can then decide to make the contents of that executive session available to the Club, including the charges filed, evidence presented, discussion, vote, and disciplinary action taken, even if they find the accused not guilty. This would be considered an executive session of the Club (even if it occurred outside a meeting) so it could not be shared with any non-members.

Yes.

3 hours ago, JayW said:

In that case, is the accused then free to discuss the matter with members of the Club? 

No.

3 hours ago, JayW said:

Which is the issue here, because the Board convicted a member of something they (very easily proven) did not do. So there's no recourse for the member to clear their name, and no way for the membership to know the Board acted not in good faith. 

Well, a (potentially risky) strategy would be for the member to report these matters to the membership anyway, notwithstanding that doing so will breach the confidentiality of executive session (and therefore be a violation of the rules), and hope that the members will be more upset about the board's behavior than with the member's decision to breach executive session. Presumably, the membership has the authority to remove board members?

A potential strategy to stay entirely within the rules would be that, if the board has at least shared some information regarding this matter, the member could try to urge the membership that it would be worth their while to order the board to disclose more information. If the membership is not at all aware of the existence of the discipline, however, that doesn't seem possible.

In the long run, perhaps it would be prudent to amend the bylaws to require the board to share a certain minimum amount of information with the membership regarding disciplinary matters. This would at least let the membership know that something had happened, and it would therefore have the ability to demand further information if it desired.

Edited April 5, 2020 at 07:30 PM by Josh Martin

[Gary Novosielski]

8 hours ago, JayW said:

The results of a trial have at times been announced to the membership via a written (online) communication from the President. 

 

Nothing wrong with announcing things to the membership, but they can't be considered to be in executive session if the rules in RONR apply.

[Joshua Katz]

Question: RONR specifies that disciplinary meetings are to be held by the membership in executive session. If the bylaws allow the board to conduct discipline, does this rule from RONR "carry over," or is this instead a case where the bylaws are, in fact, not silent, and there is no requirement to hold the meeting in executive session?

Futhermore:

On 4/4/2020 at 4:10 PM, JayW said:

I understand that investigations and actions leading up to a trial are considered to be held in executive session. Does that apply to the charges as well? Can the accused share with other people (not part of the Board, possibly not part of the society) the charges filed against them? 

 

I don't know what "considered" means. Either the body adopts a motion to enter executive session, or it does not. If it didn't, the fact that it should have is irrelevant, is it not?

[Atul Kapur]

35 minutes ago, Joshua Katz said:

Question: RONR specifies that disciplinary meetings are to be held by the membership in executive session. If the bylaws allow the board to conduct discipline, does this rule from RONR "carry over,"

Answer: Yes, it would carry over to whichever body is conducting the trial, whether the entire assembly, a committee, or the  board.

[Joshua Katz]

Why? I have to admit, I have been struggling for years with determining just when the bylaws are "silent" about something.

[Josh Martin]

50 minutes ago, Joshua Katz said:

If the bylaws allow the board to conduct discipline, does this rule from RONR "carry over," or is this instead a case where the bylaws are, in fact, not silent, and there is no requirement to hold the meeting in executive session?

The rule in RONR states "Consequently, a trial must always be held in executive session, as must the introduction and consideration of all resolutions leading up to the trial." (RONR, 11th ed., pg. 655)

Nothing about the rule as it is written suggests to me that the rule is limited to the membership. RONR explicitly discusses the possibility of a trial committee and a committee on discipline. It seems to me the rule applies to those bodies as well, and if an organization authorizes its board to conduct discipline, I see no reason why the rule would not apply to the board as well. 

Even if for some reason the rule does not apply, holding disciplinary trials in executive session is an extremely good idea.

[Joshua Katz]

Okay, that makes sense. Thanks.

Does the rule also imply that executive session is "automatic," and the trial is in executive session even if the assembly does not adopt a motion to enter executive session?

[Josh Martin]

1 minute ago, Joshua Katz said:

Okay, that makes sense. Thanks.

Does the rule also imply that executive session is "automatic," and the trial is in executive session even if the assembly does not adopt a motion to enter executive session?

I think so.

"A meeting enters into executive session only when required by rule or established custom, or upon the adoption of a motion to do so." (RONR, 11th ed., pg. 95)

If a society has adopted RONR as its parliamentary authority, it is required by rule to enter executive session for a trial, since the rules state that the trial "must" be held in executive session.

I think it would still be advisable for the assembly to adopt a motion to formally enter executive session, or at least for the chair to announce that the assembly is entering executive session, for the sake of clarity. It appears to me that even if the assembly fails to do so, however, the trial is still in executive session.

[J. J.]

18 hours ago, Josh Martin said:

I think so.

"A meeting enters into executive session only when required by rule or established custom, or upon the adoption of a motion to do so." (RONR, 11th ed., pg. 95)

If a society has adopted RONR as its parliamentary authority, it is required by rule to enter executive session for a trial, since the rules state that the trial "must" be held in executive session.

I think it would still be advisable for the assembly to adopt a motion to formally enter executive session, or at least for the chair to announce that the assembly is entering executive session, for the sake of clarity. It appears to me that even if the assembly fails to do so, however, the trial is still in executive session.

I think such a rule could be suspended, though I would question the wisdom of doing so.

[Richard Brown]

On 4/5/2020 at 8:18 PM, Joshua Katz said:

Question: RONR specifies that disciplinary meetings are to be held by the membership in executive session. If the bylaws allow the board to conduct discipline, does this rule from RONR "carry over," or is this instead a case where the bylaws are, in fact, not silent, and there is no requirement to hold the meeting in executive session?

I agree with Dr. Kapur and Mr. Martin that the rule would apply to a disciplinary proceeding conducted by the board.

 

23 hours ago, Joshua Katz said:

Does the rule also imply that executive session is "automatic," and the trial is in executive session even if the assembly does not adopt a motion to enter executive session?

I agree with Mr. Martin and J.J. that the rule in RONR requires that disciplinary proceedings be conducted in executive session and that a motion to enter executive session is therefore not required, although perhaps it is advisable to do so just be sure that everyone present is aware that the proceedings are in executive session.  I also agree with J.J. that the rule could be suspended.

[Josh Martin]

4 hours ago, J. J. said:

I think such a rule could be suspended, though I would question the wisdom of doing so.

 

10 minutes ago, Richard Brown said:

I also agree with J.J. that the rule could be suspended.

I would think that suspending this rule, however, would require the consent of the accused.

“In any case, no rule protecting a minority of a particular size can be suspended in the face of a negative vote as large as the minority protected by the rule.” (RONR, 11th ed., pg. 261)

Since the purpose of the rule is, in part, to protect the accused, it seems to me that suspending it would require a 2/3 vote and the consent of the accused.

[Richard Brown]

9 minutes ago, Josh Martin said:

 

I would think that suspending this rule, however, would require the consent of the accused.

“In any case, no rule protecting a minority of a particular size can be suspended in the face of a negative vote as large as the minority protected by the rule.” (RONR, 11th ed., pg. 261)

Since the purpose of the rule is, in part, to protect the accused, it seems to me that suspending it would require a 2/3 vote and the consent of the accused.

Makes sense.  I would agree. 

[Joshua Katz]

3 hours ago, Josh Martin said:

“In any case, no rule protecting a minority of a particular size can be suspended in the face of a negative vote as large as the minority protected by the rule.” (RONR, 11th ed., pg. 261)

 

The accused is one person. Why doesn't it require unanimity, by this logic?