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conflict of interest


Guest Melanee
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I am a board member in an organization that does not have detailed bylaws.  There are 6 board members including the president, vice-president, treasurer and secretary.  For the past 20 years the president only voted to break a tie.  Our bylaws have no language about the president voting.  We have had charged brought against our organization's president and treasurer.  Our bylaws do not have details on how to handle this and our parent organization referred us the Robert's rules of order for resolution.  My question is this; can the president vote on whether or not the charges have merit?  subsequently can she vote on her own suspension should it go to a hearing?  Also, since a precedent has been set of her only voting in the case of a tie can she start voting now to make everything a tie?

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6 hours ago, Guest Melanee said:

I am a board member in an organization that does not have detailed bylaws.  There are 6 board members including the president, vice-president, treasurer and secretary.  For the past 20 years the president only voted to break a tie.  Our bylaws have no language about the president voting.  We have had charged brought against our organization's president and treasurer.  Our bylaws do not have details on how to handle this and our parent organization referred us the Robert's rules of order for resolution.  My question is this; can the president vote on whether or not the charges have merit?  subsequently can she vote on her own suspension should it go to a hearing?  Also, since a precedent has been set of her only voting in the case of a tie can she start voting now to make everything a tie?

What exactly do your bylaws say about removing a board member? Nothing whatsoever, or does it include something and it just isn't very detailed? If the latter, what do they say? That will affect the proper procedures in this matter.

In regard to the President voting, the President (if a member) has the right to vote on all matters unless your bylaws provide otherwise, especially in a small board. RONR provides that in larger assemblies, the chair refrains from voting except when their vote would affect the result. Even under those rules, the chair could vote to create a tie.

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6 hours ago, Guest Melanee said:

I am a board member in an organization that does not have detailed bylaws.  There are 6 board members including the president, vice-president, treasurer and secretary.  For the past 20 years the president only voted to break a tie.  Our bylaws have no language about the president voting.  We have had charged brought against our organization's president and treasurer.  Our bylaws do not have details on how to handle this and our parent organization referred us the Robert's rules of order for resolution.  My question is this; can the president vote on whether or not the charges have merit?  subsequently can she vote on her own suspension should it go to a hearing?  Also, since a precedent has been set of her only voting in the case of a tie can she start voting now to make everything a tie?

When the president is a boardmember she has all the rights of a boardmember including voting, to maintain impartiality it is prudent and adviced that the president only votes when her vote matters, I think that the president it so in an  admirable fashion.

When boardmembers have a personal interest in an voting outcome not shared with the other boardmembers they should not vote, but they are not prohibited to vote (because voting is a fundamental right of each boardmember) 

So yes, a boardmember may vote on his or her own suspension, but is advised not to do so.

I was once puzzling with a rule that a member was assumed to vote against their own suspension so did not have to vote so.

 

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8 hours ago, Guest Melanee said:

I am a board member in an organization that does not have detailed bylaws.  There are 6 board members including the president, vice-president, treasurer and secretary.  For the past 20 years the president only voted to break a tie.  Our bylaws have no language about the president voting.  We have had charged brought against our organization's president and treasurer.  Our bylaws do not have details on how to handle this and our parent organization referred us the Robert's rules of order for resolution.  My question is this; can the president vote on whether or not the charges have merit?  subsequently can she vote on her own suspension should it go to a hearing?  Also, since a precedent has been set of her only voting in the case of a tie can she start voting now to make everything a tie?

I'm not sure what these "charges" have to do with RONR.  If there is nothing in your bylaws about it, you should be using the procedure in Chapter XX (20) in RONR.  

For details on the president voting, see FAQ #1 on this page.

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10 hours ago, Guest Puzzling said:

When boardmembers have a personal interest in an voting outcome not shared with the other boardmembers they should not vote, but they are not prohibited to vote (because voting is a fundamental right of each boardmember) 

So yes, a boardmember may vote on his or her own suspension, but is advised not to do so.

I was once puzzling with a rule that a member was assumed to vote against their own suspension so did not have to vote so.

This is generally correct, and I would add that for similar reasons, the President should not preside over disciplinary proceedings against the President, so that further resolves the issue of concerns regarding the chair voting.

I would add that in the event that the bylaws are entirely silent on discipline and the rules in RONR are controlling, those rules provide that the accused must leave the room at the conclusion of the trial, for the assembly's determination of guilt and the penalty. As a result, the accused will not be able to vote on the question of guilt or the penalty. Further, at the point that the organization is preferring charges, the organization may choose to suspend the member of some or all of the member's rights until the conclusion of the trial. In the event this occurs, the member will be unable to vote on any motions relating to the disciplinary proceedings (and for that matter, any motions at all) during that period. The member could vote on the motion to prefer charges, or on motions leading up to that (such as the motion to appoint the investigative committee), although the member should not do so due to having a personal interest not in common with other members.

Before the OP runs with that, however, I will caution that:

1) If the bylaws say anything regarding discipline, we need to know what exactly they say, since those rules will take precedence over RONR.

2) If the bylaws are silent, it should be noted that disciplinary authority rests with the general membership of the society, not the board. (Unless the organization in question only has a board, I suppose.)

3) If the bylaws are silent, it should be noted that the disciplinary procedures in RONR are quite lengthy and complex and should be reviewed in their entirety before proceeding.

4) Finally, I would note that each trial (or each motion for removal, if no trial is required) should be handled separately for each accused person.

Edited by Josh Martin
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Let me add some additional information.  You all have been extremely helpful in guiding me through this BTW.  There is nothing in the bylaws regarding discipline.  The president and former board removed all language regarding this as well as any other language that would provide for guidelines on the authority of the treasurer.  Currently, the charges are against both the treasurer and the president for misappropriation of funds, misuse of authority, not getting receipts for cash transactions, no accountability for any cash transactions, missing cash, missing inventory, and a few others similar.  I was originally asking about the president voting on her own charges and it seems she may be able to do that to create a tie.  Is that true for the treasurer as well?  If that is the case then they will vote to make a tie as well and there will be nothing we can do to stop the misuse of power by using the organization's funds to make purchases that the board hasn't approved, not keeping track of incoming cash payments, disappearing inventory, etc.   The parent organization is no help.  They have told us to handle this at the local level.  

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And apparently they have also told you to handle this in accordance with RONR, so as Mr. Martin strongly advises, you should carefully study Chapter XX in RONR. 

If you do, you will find that there is no way for individual members to "prefer charges" against anyone.  Charges can only be preferred by adopting the recommendation of an investigative committee, [63:11] so you may need to back up a few steps if these "charges" had some other origin.

 

Edited by Gary Novosielski
add "individual" for clarity
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The bylaws are stated below and allow for charges to be made.  They have been made already. 

SECTION 2. CHARGES. Any Member may prefer charges against a Member for alleged misconduct prejudicial to the best interests of the Club. Written charges with specifications must be tiled induplicate with the Secretary together with a deposit of thirty-five (35) dollars which shall be forfeited if such charges are not sustained by the Board following a hearing. The Secretary shall promptly send a copy of the charges to each member of the Board or present them at a Board Meeting, and the Board shall first consider whether the actions alleged in the charges, i f proven, might constitute conduct prejudicial to the best interests of the Club. If the Board considers that the charges do not allege conduct which would be prejudicial to the best interests of the Club, it may refuse to entertain jurisdiction. If the Board entertains jurisdiction of the charges it shall fix a date of a hearing by the Board not less than three (3) weeks or more than six (6) weeks thereafter. The Secretary shall promptly send one copy of the charges to the accused members by registered mail together with a notice of the hearing and assurance that the defendant may personally appear in his own defense and bring witnesses if he wishes.

SECTION 3. BOARD HEARINGS. The Board shall have complete authority to decide whether counsel may attend the hearing, but both complainant and defendant shall be treated uniformly in that regard. Should the charges be sustained, after hearing all the evidence and testimony presented by complainant and defendant, the Board may by a majority of those present suspend the defendant from all privileges of the Club for not more than six (6) months from the date of the hearing. And if it deems that punishment insufficient, it may also recommend to the Membership that the penalty be expulsion. In such case, the suspension shall not restrict the defendant’s right to appear before his fellow-members at the ensuing Club Meeting which considers the Board’s recommendation. Immediately after the Board has reached a decision, its findings shall be put in written form and filed with the Secretary, in turn, shall notify each of the parties of the Board’s decision and penalty, if any.

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7 minutes ago, Guest Melanee said:

The bylaws are stated below and allow for charges to be made.  They have been made already. 

SECTION 2. CHARGES. Any Member may prefer charges against a Member for alleged misconduct prejudicial to the best interests of the Club. Written charges with specifications must be tiled induplicate with the Secretary together with a deposit of thirty-five (35) dollars which shall be forfeited if such charges are not sustained by the Board following a hearing. The Secretary shall promptly send a copy of the charges to each member of the Board or present them at a Board Meeting, and the Board shall first consider whether the actions alleged in the charges, i f proven, might constitute conduct prejudicial to the best interests of the Club. If the Board considers that the charges do not allege conduct which would be prejudicial to the best interests of the Club, it may refuse to entertain jurisdiction. If the Board entertains jurisdiction of the charges it shall fix a date of a hearing by the Board not less than three (3) weeks or more than six (6) weeks thereafter. The Secretary shall promptly send one copy of the charges to the accused members by registered mail together with a notice of the hearing and assurance that the defendant may personally appear in his own defense and bring witnesses if he wishes.

SECTION 3. BOARD HEARINGS. The Board shall have complete authority to decide whether counsel may attend the hearing, but both complainant and defendant shall be treated uniformly in that regard. Should the charges be sustained, after hearing all the evidence and testimony presented by complainant and defendant, the Board may by a majority of those present suspend the defendant from all privileges of the Club for not more than six (6) months from the date of the hearing. And if it deems that punishment insufficient, it may also recommend to the Membership that the penalty be expulsion. In such case, the suspension shall not restrict the defendant’s right to appear before his fellow-members at the ensuing Club Meeting which considers the Board’s recommendation. Immediately after the Board has reached a decision, its findings shall be put in written form and filed with the Secretary, in turn, shall notify each of the parties of the Board’s decision and penalty, if any.

Okay, so it appears that the bylaws are not, in fact, silent regarding discipline as was previously stated.

Based upon these facts, the rules described in the sections you have quoted are the rules which must be followed, since those rules will take precedence over the rules in RONR. It is ultimately up to the organization to interpret its own rules, but my own reading of it is as follows:

22 hours ago, Guest Melanee said:

My question is this; can the president vote on whether or not the charges have merit? 

Yes, although the President should not do so.

22 hours ago, Guest Melanee said:

subsequently can she vote on her own suspension should it go to a hearing?

Yes, although the President should not do so.

3 hours ago, Guest Melanee said:

Is that true for the treasurer as well?

The Treasurer should not vote on charges or motions to suspend the Treasurer, but ultimately has the right to do so.

I would add that for the President and Treasurer, it may be that there are stricter "conflict of interest" rules in the organization's rules or applicable law, although that is beyond the scope of RONR and this forum.

3 hours ago, Guest Melanee said:

If that is the case then they will vote to make a tie as well and there will be nothing we can do to stop the misuse of power by using the organization's funds to make purchases that the board hasn't approved, not keeping track of incoming cash payments, disappearing inventory, etc.

This appears to be correct. Therefore, alternate options would need to be pursued, such as the following:

1) Elect new board members when the next regular elections arrive.

2) Amend the bylaws to change the rules for discipline.

3) Consult an attorney to see what legal recourse might be available.

Edited by Josh Martin
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The charges have already been made and it is allowed via the bylaws.  I have read and reread Chapter XX.  What I would like clarification as to whether they can vote on this or not.  Sounds like they can.  

SECTION 2. CHARGES. Any Member may prefer charges against a Member for alleged misconduct prejudicial to the best interests of the Club. Written charges with specifications must be tiled induplicate with the Secretary together with a deposit of thirty-five (35) dollars which shall be forfeited if such charges are not sustained by the Board following a hearing. The Secretary shall promptly send a copy of the charges to each member of the Board or present them at a Board Meeting, and the Board shall first consider whether the actions alleged in the charges, i f proven, might constitute conduct prejudicial to the best interests of the Club. If the Board considers that the charges do not allege conduct which would be prejudicial to the best interests of the Club, it may refuse to entertain jurisdiction. If the Board entertains jurisdiction of the charges it shall fix a date of a hearing by the Board not less than three (3) weeks or more than six (6) weeks thereafter. The Secretary shall promptly send one copy of the charges to the accused members by registered mail together with a notice of the hearing and assurance that the defendant may personally appear in his own defense and bring witnesses if he wishes.

SECTION 3. BOARD HEARINGS. The Board shall have complete authority to decide whether counsel may attend the hearing, but both complainant and defendant shall be treated uniformly in that regard. Should the charges be sustained, after hearing all the evidence and testimony presented by complainant and defendant, the Board may by a majority of those present suspend the defendant from all privileges of the Club for not more than six (6) months from the date of the hearing. And if it deems that punishment insufficient, it may also recommend to the Membership that the penalty be expulsion. In such case, the suspension shall not restrict the defendant’s right to appear before his fellow-members at the ensuing Club Meeting which considers the Board’s recommendation. Immediately after the Board has reached a decision, its findings shall be put in written form and filed with the Secretary, in turn, shall notify each of the parties of the Board’s decision and penalty, if any.

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33 minutes ago, Guest Melanee said:

I have read and reread Chapter XX. 

You don't have to worry about Ch. XX anymore. Your bylaws have their own rules for discipline, so you have to follow those rules.

33 minutes ago, Guest Melanee said:

What I would like clarification as to whether they can vote on this or not.  Sounds like they can.  

Yes, unless something in your organization's rules or applicable law provide otherwise.

"Isn't it true that a member who has a conflict of interest with respect to a motion cannot vote on the motion?

Under the rules in RONR, no member can be compelled to refrain from voting simply because it is perceived that he or she may have some “conflict of interest” with respect to the motion under consideration. If a member has a direct personal or pecuniary (monetary) interest in a motion under consideration not common to other members, the rule in RONR is that the member should not vote on such a motion, but even then he or she cannot be compelled to refrain from voting. [RONR (12th ed.) 45:4.]"

https://robertsrules.com/frequently-asked-questions/

Edited by Josh Martin
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