Recusal - RONR and Law

[George]

To whom it may concern:

There is a board member in the organization I'm a part of that recently recused themselves from a situation that they were intimately involved with.  The situation was the misuse of the bylaws and an attempt to change the bylaws to excuse the actions taken by himself and an employee.  While the executive board was discussing the topics, this individual remained in the room.  There was no participation in the discussion but the individual was still present.  To my knowledge the board did not address this person's involvement as I'm sure it was difficult to talk about this individual with them present.  Additionally I need to add that this individual is the president of the board.

This really is not sitting well with me as I feel this is wrong.  After a some research I understand that recusal is not part of Robert's Rule of Order but it is referenced in the law.  I found these links and I'm putting them below.  The first link is Recusal defined.  The second link is the law case it references.  The third link is showing that Alabama (the state this is currently happening in) adopted this.

1. https://www.davis-stirling.com/HOME/Recusal-Defined
2. https://www.davis-stirling.com/HOME/Nevada-Ethics-v-Carrigan#axzz1Q0mQpafl
3. http://www.judicialrecusal.com/alabama-judicial-disqualification-recusal/

I would be really curious to get everyone's take on this both Robert's Rule of Order side and the actual legal side.  What course of action can be taken?  Area there legal ramification?

I thank you all for your time.

 

[Rob Elsman]

There is quite a bit to this post, so I will try to respond to its various aspects piece by piece.

1. We don't do "legal" on this forum.  If you have questions about Nevada laws or regulations, I recommend that you seek the professional advice of a practicing attorney.

2. As far as I can quickly recall, there is no requirement in the current edition of RONR for a member to leave the meeting room when he is the object of discussion for whatever reason, including, but not limited to, disciplinary proceedings. Put simply, if you are a member of an assembly, you have the basic right to attend its meetings.

3. "Recusal" is more of a legal term than a term of the parliamentary law.  RONR does not use the term.  I am not quite sure I know what it would even mean in terms of the parliamentary law.  I suspect it implies abstention from voting, but I am not sure that it implies more than that. Although it is true that a member should abstain from voting on a question in which he has a direct, pecuniary interest, it is also true that the right to vote of an individual member cannot be suspended except as the result of some operation in the bylaws or the result of a disciplinary proceeding.  If there is some obligation to "recuse" oneself in your organization, it comes from somewhere else.

[Richard Brown]

48 minutes ago, George said:

To whom it may concern:

There is a board member in the organization I'm a part of that recently recused themselves from a situation that they were intimately involved with.  The situation was the misuse of the bylaws and an attempt to change the bylaws to excuse the actions taken by himself and an employee.  While the executive board was discussing the topics, this individual remained in the room.  There was no participation in the discussion but the individual was still present.  To my knowledge the board did not address this person's involvement as I'm sure it was difficult to talk about this individual with them present.  Additionally I need to add that this individual is the president of the board.

This really is not sitting well with me as I feel this is wrong.  After a some research I understand that recusal is not part of Robert's Rule of Order but it is referenced in the law.  I found these links and I'm putting them below.  The first link is Recusal defined.  The second link is the law case it references.  The third link is showing that Alabama (the state this is currently happening in) adopted this.

1. https://www.davis-stirling.com/HOME/Recusal-Defined
2. https://www.davis-stirling.com/HOME/Nevada-Ethics-v-Carrigan#axzz1Q0mQpafl
3. http://www.judicialrecusal.com/alabama-judicial-disqualification-recusal/

I would be really curious to get everyone's take on this both Robert's Rule of Order side and the actual legal side.  What course of action can be taken?  Area there legal ramification?

I thank you all for your time.

 

As far as RONR is concerned, a member should not vote on a matter in which he has a direct personal or pecuniary interest not common to other members of  the organization.  However, as you can see from the provision which I am about to copy and paste below, no member can be compelled to abstain.  Here is the relevant text from page 407:

"ABSTAINING FROM VOTING ON A QUESTION OF DIRECT PERSONAL INTEREST. No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion. However, no member can be compelled to refrain from voting in such circumstances."

As to what is "legal" and what might be legal ramifications  to an action, we do not render legal opinions here.  Our opinions are based on RONR and what relevant information you might provide from your bylaws or  other relevant rules.

Just as an aside, I will note that I  don't see where the last two citations you provided have anything to do with whether a member of a voluntarily private association must abstain from a vote or recuse himself from consideration of a matter.  I also note that the Davis-Stirling act is part of California  law.   Both of those cases involve public officials who are apparently subject to certain ethics rules.    I have no idea whether Alabama has adopted a similar law and even if i did I would probably not comment on it because it would amount to rendering a legal opinion.  The first citation you provided merely references the provision I quoted from RONR.

Edited to add:  The first link you provided, which is apparently past of a discussion about California's  Davis-Stirling act, first quotes from RONR but goes on to talk  about recusal and leaving the  room.  RONR has no provision requiring a member who is abstaining to actually leave the room. Whether the California Davis-Stirling act or any other state laws require it,  I don't know.  RONR does not require it.

Edited June 8, 2020 at 05:52 PM by Richard Brown
Added last paragraph

[Josh Martin]

47 minutes ago, George said:

I would be really curious to get everyone's take on this both Robert's Rule of Order side and the actual legal side.

We can only do the first one here.

47 minutes ago, George said:

What course of action can be taken?

So far as RONR is concerned, the individual violated no rule simply by remaining present. RONR provides that a member with a personal or pecuniary interest not in common with other members should not vote, but says nothing regarding other forms of participation such as speaking in debate or remaining present. Since you say that this person is the President, it would also be relevant to note that in such circumstances, the President should relinquish the chair.

"No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion. However, no member can be compelled to refrain from voting in such circumstances." (RONR, 11th ed., pg. 407)

"Whenever a motion is made that refers only to the presiding officer in a capacity not shared in common with other members, or that commends or censures him with others, he should turn the chair over to the vice-president or appropriate temporary occupant (see below) during the assembly's consideration of that motion, just as he would in a case where he wishes to take part in debate (see also pp. 394–95)." (RONR, 11th ed., pg. 451)

The organization is free to adopt its own rules in the bylaws on these subjects if it wishes to do so.

47 minutes ago, George said:

Area there legal ramification?

I don't know. That's a question for an attorney.

Edited June 8, 2020 at 05:48 PM by Josh Martin

[George]

Thank you to everyone that is posting.  

The first link I provided has a definition for "Recusal."   It even states the case that made this definition.  I copied the page information below.

------------------------------------------

"Recusal" or to "recuse" oneself means to remove oneself from participation in a decision where you have a conflict of interest.

No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization. For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the member should abstain from voting on the motion. (Robert's Rules, 11th ed., p. 407.)

Recusal normally occurs when a director has a conflict of interest or prejudice concerning a particular matter. A conflict of interest is any situation in which financial or other personal considerations may unduly influence the director's judgment. This includes matters such as a disciplinary action against the director for violating the CC&Rs or voting on a potential contract with a company owned by a close relative of the director.

Leave the Room. In each case, the director has a personal interest in the outcome of the vote--an interest not shared by other directors. In such instances, the interested director should leave the meeting room so the remaining directors can freely discuss and vote on the issue. (California's Fair Political Practices Act, Calif. Code of Reg. §18702.5.) Once the vote is taken, the recused director may return to the meeting.

If the interested director were to stay in the meeting, his presence could inhibit the board's discussion and influence the vote. To avoid liability, a conflicted director must remove himself from the process of conferring and voting on matters in which he has a personal interest.

...the disqualified member's mere presence, or knowledge thereafter, might also subtly influence the decisions of other council members who must maintain an ongoing relationship with him. ... The attorney, as well as the other council members, might not feel as free to disclose everything necessary when a "biased" public official were present. The council members and attorney might feel similarly inhibited where they are aware that a "biased" council member can later obtain a tape recording of the attorney-council discussion. The town might thus be denied effective assistance of counsel. (Hamilton v. Los Gatos.)

Refuses to Leave. If the interested director does not leave voluntarily, the board can ask him to leave. If he refuses to leave, the board can adjourn the meeting to another location where they can hold the discussion and vote without interference by the interested director. Under those circumstances, the board might also consider a vote of censure against the director for his refusal to recuse himself.

Recommendation. Boards should adopt an Ethics Policy for directors to follow. For more information on the importance of avoiding ethics conflicts, see Ethics v. Carrigan.

-------------------------------------------------------

Now what I'm in particularly curious about is the "leave the room" section.  If you look at my first post there are three links.  One is the definition which I copied here.  The second is the actual case that made this definition.   The third link is stating that Alabama adopted this practice. 

Now based on all your responses perhaps this is not the correct forum to ask this information, but I still value and would like to hear your responses to this.

Thank you once again.

 

[Josh Martin]

14 minutes ago, George said:

Now what I'm in particularly curious about is the "leave the room" section.  If you look at my first post there are three links.  One is the definition which I copied here.  The second is the actual case that made this definition.   The third link is stating that Alabama adopted this practice. 

Now based on all your responses perhaps this is not the correct forum to ask this information, but I still value and would like to hear your responses to this.

There is no "perhaps" about it. The purpose of this forum is "to allow an open exchange of views relevant to specific questions of parliamentary procedure under Robert's Rules of Order Newly Revised." To the extent that your post involved such questions, they appear to have been answered. Your other questions relate to Alabama law, and they should be directed to someone who is an expert in such matters.

We've all made clear that we have no expertise in such matters, so I cannot imagine why you value or would like to hear our responses to those questions, but in any event, I don't imagine you will find someone here who is willing to opine on such matters.

[Richard Brown]

2 hours ago, George said:

Now what I'm in particularly curious about is the "leave the room" section. 

Agreeing with Mr. Martin, and as I believe two or three of us have already told you. RONR has no provisions regarding "recusal" or leaving the room when abstaining.  Per RONR, no member can be forced to abstain.   I quoted for you the exact language from RONR, which I believe is the same language quoted in your first link.

You need to consult an attorney with your legal questions.   Keep in mind that public officials are generally subject to ethical rules that are not applicable in ordinary voluntary societies. The cases you cited all involve public officials.

[Gary Novosielski]

26 minutes ago, Richard Brown said:

I quoted for you the exact language from RONR, which I believe is the same language quoted in your first link.

It was the same language with one difference.  It omitted the final sentence:  "However, no member can be compelled to refrain from voting in such circumstances."