Confidentiality of Charges/Disciplinary Action

[J. J.]

5 hours 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.

Technically, it is not a right, and the purpose of the rule is to protect the assembly (which goes back to the 4th edition).  If the society would chose to conduct a disciplinarian action in open session, I would not find the act null and void, for that sole reason.  It might open the assembly to litigation, but the act of attempting to discipline the member would not be subject to a point of order after the fact.

I would point out that this would be true even if the defendant was fine with having the action in open session.   

[Josh Martin]

11 hours ago, Joshua Katz said:

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

I would argue that the rule only protects one member in the context of the accused.

9 hours ago, J. J. said:

Technically, it is not a right, and the purpose of the rule is to protect the assembly (which goes back to the 4th edition).  If the society would chose to conduct a disciplinarian action in open session, I would not find the act null and void, for that sole reason.  It might open the assembly to litigation, but the act of attempting to discipline the member would not be subject to a point of order after the fact.

I would point out that this would be true even if the defendant was fine with having the action in open session.   

In my view, the purpose of the rule is to protect both the accused and the assembly. Therefore, the rule cannot be suspended without the consent of the accused, as the rule cannot be suspended in the face of the minority the rule is intended to protect (the accused). If the assembly wishes to conduct trials in open session notwithstanding the wishes of the accused, then in my opinion, the proper course of action is for the assembly to adopt a special rule of order on the matter (or better yet, to adopt such a rule in the bylaws). I do not find such a rule advisable.

I agree that in the event the assembly nonetheless chooses to hold the trial in open session, I do not think this violation, in and of itself, is sufficient for a finding that the assembly's determination of guilt and the penalty is null and void. I do think, however, that a member could still raise a Point of Order regarding this matter, for the purpose of clarifying this right for the future (similar to how such a point may be raised if a member's right to vote is denied, even if the member's vote did not affect the outcome) and also for the purpose of clarifying that the trial is considered to have been held in executive session, to prevent further dissemination of information from the trial. The accused may, of course, also have legal remedies, but that is beyond the scope of RONR and this forum.

Edited April 7, 2020 at 04:42 PM by Josh Martin

[J. J.]

7 hours ago, Josh Martin said:

I agree that in the event the assembly nonetheless chooses to hold the trial in open session, I do not think this violation, in and of itself, is sufficient for a finding that the assembly's determination of guilt and the penalty is null and void. I do think, however, that a member could still raise a Point of Order regarding this matter, for the purpose of clarifying this right for the future (similar to how such a point may be raised if a member's right to vote is denied, even if the member's vote did not affect the outcome) and also for the purpose of clarifying that the trial is considered to have been held in executive session, to prevent further dissemination of information from the trial. The accused may, of course, also have legal remedies, but that is beyond the scope of RONR and this forum.

However, in the case where the right to vote was abridged there could be situations where that would affect the result.  There is no possibility of that in a trial that happened in open session, or it that information was released by the assembly after the fact. 

However, the difference  is primarily that there is a stated right  in RONR that a member (a "voting member") has the right to vote.  There is no corresponding right to have the disciplinary process conducted secretly stated in text.   I would note that is a right for any member to demand that the vote on guilt and penalty does exist in text and would, in my opinion, void the  vote if that demand was not met.