Paperwork outside of ES

[MapsStrauts]

Dealing with a non profit social club, charges were proffered against a member.
At the start of the hearing, ES was voted upon by the hearing committee but not the member charged.

The questions the member has;

Is the member tied by ES if they didn't vote about ES?
Is the paperwork sent previous to the meeting part of ES?
Is any email sent about the session part of the ES?
Is the result of the hearing, part of the ES?

Thank you

 

[Gary Novosielski]

What do you mean by ES?

[Gary Novosielski]

On 9/7/2022 at 8:29 PM, MapsStrauts said:

Dealing with a non profit social club, charges were proffered against a member.
At the start of the hearing, ES was voted upon by the hearing committee but not the member charged.

The questions the member has;

Is the member tied by ES if they didn't vote about ES?
Is the paperwork sent previous to the meeting part of ES?
Is any email sent about the session part of the ES?
Is the result of the hearing, part of the ES?

Thank you

 

Presumably everyone present during executive session is agreeing to be bound by the rules if they choose to remain.

Paperwork and emails are not part of the meeting, and are not affected.

If the result of the hearing was a motion of some sort, made and voted on in executive session, then yes it is part of the minutes of that executive session portion of that meeting.  Is there anything else you would include under results?

Edited September 8, 2022 at 12:52 AM by Gary Novosielski

[Rob Elsman]

On 9/7/2022 at 7:50 PM, Gary Novosielski said:

Presumably everyone present during executive session is agreeing to be bound by the rules if they choose to remain.

 

Whoever does not agree is duty-bound to withdraw from the meeting room or area.  Correspondingly, the assembly has the right to enforce its rules.

[MapsStrauts]

On 9/7/2022 at 8:50 PM, Gary Novosielski said:

Presumably everyone present during executive session is agreeing to be bound by the rules if they choose to remain.

Paperwork and emails are not part of the meeting, and are not affected.

If the result of the hearing was a motion of some sort, made and voted on in executive session, then yes it is part of the minutes of that executive session portion of that meeting.  Is there anything else you would include under results?

Thank you for the response. Here is more detail.

A member was charged with election fraud because she negatively campaigned against a candidate. I am saying negative but she told the truth about a candidates history.

The candidate filed the charges for election fraud. This may seem absurd but the Board reviewed and pushed the complaint to a hearing.
There is no rules in the Constitution or by-laws and no policies or procedures manual, against sharing the charges. In fact, there is nothing about, what can and cannot be done except saying that the hearing will be heard by a minimum of 3 Board members.

The Board, who were all overturned in the election, stated that the member accused could not share those charges as they were part of the executive session. 
The member shared that information as she was seeking advice but she is now being told she broke the executive session and could be charged on that as well.

I do not see how someone accused and charges brought against, is not allowed to share the charges. I cannot find anything in RRO which contradicts this believe.

She was also directed, that she cannot discuss this with anyone, only someone she may want to bring as a witness. 

This appears like retribution for losing to me but I do not know what RRO of order states about this, if anything.

The whole Board ended up on the hearing and they are most of the people the member campaigned against.

Any insight would be appreciated.

 

[puzzling]

On 9/9/2022 at 5:43 AM, MapsStrauts said:

There is no rules in the Constitution or by-laws and no policies or procedures manual, against sharing the charges. In fact, there is nothing about, what can and cannot be done except saying that the hearing will be heard by a minimum of 3 Board members.

yeah yeah, we here at this forum want to see the text of the interpreted reference, what is litterally in any of the governing documents? 

I think the  accused may share the accusations against him with whoever he wants (how can he otherwise prepare his defence) but I need to check section 63  of RONR very carefully, before I an give a  definite answer.

Start by giving us the exact quotes as requested and read section 63 yourself as well.

Then we can get this whole thread to a higher standard.

[Josh Martin]

On 9/7/2022 at 7:29 PM, MapsStrauts said:

Dealing with a non profit social club, charges were proffered against a member.
At the start of the hearing, ES was voted upon by the hearing committee but not the member charged.

My understanding is that "ES" refers to Executive Session. Please correct me if I am mistaken in this.

On 9/7/2022 at 7:29 PM, MapsStrauts said:

Is the member tied by ES if they didn't vote about ES?

Yes.

On 9/7/2022 at 7:29 PM, MapsStrauts said:

Is the paperwork sent previous to the meeting part of ES?

Is any email sent about the session part of the ES?

This is a bit of a gray area and will depend upon the specific facts pertaining to the paperwork and the email. I'll say "Maybe."

On 9/7/2022 at 7:29 PM, MapsStrauts said:

Is the result of the hearing, part of the ES?

Yes, except to the extent required to carry out the result. Additionally, the committee may choose to disclose further information if desired - although because this matter involves discipline, the extent to which such matters may be made public are extremely limited. The committee would have greater latitude to release information within the society.

"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 (12th ed.) 63:3

On 9/7/2022 at 7:50 PM, Gary Novosielski said:

Paperwork and emails are not part of the meeting, and are not affected.

Well, hold on a bit. Suppose, for example, that following the executive session, an email is sent which discusses matters from the executive session. Such an email is certainly bound by the terms of the executive session to just as great an extent as the executive session itself, yes?

Further, even to the extent that certain other written documents may not be covered by executive session per se, I don't think this necessarily means such documents are necessarily considered to be public and may be shared freely.

On 9/8/2022 at 11:43 PM, MapsStrauts said:

A member was charged with election fraud because she negatively campaigned against a candidate. I am saying negative but she told the truth about a candidates history.

The candidate filed the charges for election fraud. This may seem absurd but the Board reviewed and pushed the complaint to a hearing.

Speaking to the charges themselves, the following information in RONR may be relevant:

"If there is an article on discipline in the bylaws (56:57), it may specify a number of offenses outside meetings for which these penalties can be imposed on a member of the organization. Frequently, such an article provides for their imposition on any member found guilty of conduct described, for example, as “tending to injure the good name of the organization, disturb its well-being, or hamper it in its work.” In any society, behavior of this nature is a serious offense properly subject to disciplinary action, whether the bylaws make mention of it or not." RONR (12th ed.) 61:3

"A member or officer has the right that allegations against his good name shall not be made except by charges brought on reasonable ground. If thus accused, he has the right to due process—that is, to be informed of the charge and given time to prepare his defense, to appear and defend himself, and to be fairly treated." RONR (12th ed.) 63:5

"The moment the chair hears such words as “fraud,” “liar,” or “lie” used about a member in debate, he must act immediately and decisively to correct the matter and prevent its repetition (see 61)." RONR (12th ed.) 43:21

"For the protection of parties who may be innocent, the first resolution should avoid details as much as possible. An individual member may not prefer charges, even if that member has proof of an officer’s or member’s wrongdoing. If a member introduces a resolution preferring charges unsupported by an investigating committee’s recommendation, the chair must rule the resolution out of order, informing the member that it would instead be in order to move the appointment of such a committee (by a resolution, as in the example above). A resolution is improper if it implies the truth of specific rumors or contains insinuations unfavorable to an officer or member, even one who is to be accused. It is out of order, for example, for a resolution to begin, “Whereas, It seems probable that the treasurer has engaged in graft,…” At the first mention of the word “graft” in such a case, the chair must instantly call to order the member attempting to move the resolution." RONR (12th ed.) 63:11

So depending upon the specific facts, it actually may well be appropriate to discipline a member for making allegations against another candidate, even if those allegations are ultimately correct. If a member is aware of misconduct by another member, the appropriate course of action is to follow the formal disciplinary procedures, in order to protect the accused. Of course, that may or may not be the situation here - "negative campaigning" is quite broad and could refer to a great many different things.

In any event, RONR permits great latitude for a society to discipline its members, and it is ultimately up to the society's judgment to determine whether a particular behavior is "tending to injure the good name of the organization, disturb its well-being, or hamper it in its work." As a result, I leave it to the society's judgment whether the facts of a particular case suggest that discipline is warranted.

As to the procedures, RONR's disciplinary procedures are discussed in RONR (12th ed.) Section 63, however, if the organization's bylaws have their own rules on this matter (which appears to be the case), those rules will take precedence. It should be noted that individual members cannot file charges under the disciplinary procedures in RONR - only the society itself can do so - but it may well be that your organization's bylaws provide otherwise.

I will also say that the behavior described here, even to the extent that a society may determine that it warrants disciplinary action, does not appear to be properly described as "election fraud," and so it likely would have behooved the society to adopt a charge which more accurately described the behavior.

On 9/8/2022 at 11:43 PM, MapsStrauts said:

The Board, who were all overturned in the election, stated that the member accused could not share those charges as they were part of the executive session. 
The member shared that information as she was seeking advice but she is now being told she broke the executive session and could be charged on that as well.

I do not see how someone accused and charges brought against, is not allowed to share the charges. I cannot find anything in RRO which contradicts this believe.

She was also directed, that she cannot discuss this with anyone, only someone she may want to bring as a witness. 

This appears like retribution for losing to me but I do not know what RRO of order states about this, if anything.

The whole Board ended up on the hearing and they are most of the people the member campaigned against.

In my view, the board is correct in this matter. Everyone present in an executive session is bound to secrecy, except to the extent that secrecy has been lifted for particular matters. The accused in a disciplinary trial is not exempted from such rules. And yes, the member could be disciplined for violating the confidentiality of the executive session.

Of course, whether the member actually will be disciplined for violating the executive session is another matter, and it is impossible for me to guess how this will play out in your society.

RONR has nothing particular to say regarding retribution but, as noted above, RONR grants the society broad authority to discipline members for conduct "tending to injure the good name of the organization, disturb its well-being, or hamper it in its work." Certainly the society might view retribution as such conduct. So it may well be that the tables turn and the (apparently soon to be former) board members might be on the other side of a disciplinary hearing in the future.

EDIT: I have thought about this a bit more, and while I think this is still generally correct, I do believe there is at least a limited right for the accused to share the charges - see below.

Edited September 10, 2022 at 11:27 AM by Josh Martin

[Gary Novosielski]

On 9/9/2022 at 12:16 PM, Josh Martin said:

On 9/7/2022 at 8:50 PM, Gary Novosielski said:

Paperwork and emails are not part of the meeting, and are not affected.

Well, hold on a bit. Suppose, for example, that following the executive session, an email is sent which discusses matters from the executive session. Such an email is certainly bound by the terms of the executive session to just as great an extent as the executive session itself, yes?

Further, even to the extent that certain other written documents may not be covered by executive session per se, I don't think this necessarily means such documents are necessarily considered to be public and may be shared freely.

Yes, if the e-mails contain confidential matters, then that information is protected, not because it is in an email that is not part of the meeting, but because it is information that was part of the meeting. Unless the email or document was drafted in the meeting, it enjoys no particular protection.  If it was discussed in the meeting, it does not acquire additional protection, but what was said about it in the meeting is protected.

But it is certainly possible for emails and documents to be properly treated as confidential for any number of reasons apart from executive session.  Executive session is not the only reason to keep that the contents of document out of the public eye. It is intended to keep the contents of the meeting itself out of the public eye.

It seems to me that we don't truly disagree.

[Josh Martin]

On 9/9/2022 at 1:23 PM, Gary Novosielski said:

It seems to me that we don't truly disagree.

I didn't think we did, I just wanted to make sure we were clear for the sake of the OP.

[Josh Martin]

On 9/8/2022 at 11:43 PM, MapsStrauts said:

I do not see how someone accused and charges brought against, is not allowed to share the charges. I cannot find anything in RRO which contradicts this believe.

I have thought on this further and it seems to me that the accused does, in fact, have the right to share the charges, and indeed to share other details germane to the trial (such as when and where it will be held), at least to the extent necessary for the accused to prepare their defense. This would include, at a minimum, sharing this information with persons the accused intends to call as witnesses or persons the accused intends to hire as counsel. To suggest otherwise would render the accused's right to prepare a defense meaningless. I am still not entirely persuaded there is an unlimited right for the accused to share the charges with anyone whatsoever. Since the accused was, of course, a party to the original situation, the accused could also share facts known to them of the situation which led to the bringing of charges.

It must be reiterated, however, that this does not mean the accused can share whatever they like concerning the trial and meetings leading up to it. The rules of executive session are binding on all who are present and the accused is not exempt from such rules. The rules pertaining to the secrecy of disciplinary procedures are intended to protect both the accused and the society.

EDIT: Fixed a not hole.

Edited September 11, 2022 at 03:12 PM by Josh Martin

[Atul Kapur]

On 9/10/2022 at 5:23 AM, Josh Martin said:

It must be reiterated, however, that this does [___] mean the accused can share whatever they like concerning the trial and meetings

Missing a "not"?

[Josh Martin]

On 9/10/2022 at 9:07 AM, Atul Kapur said:

Missing a "not"?

Yes, thank you.

[MapsStrauts]

Guys, thank you very much for the advice but it only leads to many more questions.

The Society does allow individuals to bring charges. From what I am reading though it is very grey area in some instances and disappointing in others.

A statement was made on social media which was true and had supporting evidence. The complainant said it wasn't true and filed charges for election fraud. The complainant is a Board member who lost her position in a landslide.

Maybe I am naïve but the Board, did not accept evidence from the defendant, and acted very arbitrary in determining guilt. What I am reading, is the Board can determine if it is detrimental to the club with, whatever broad stroke they wish. Under this overbroad reasoning, practically any member could be considered detrimental to the club for practically anything and the Board are allowed to do that?

I would also like clarification on the following. A member of the hearing (Board) committee was addressed in the meeting as a witness to a lie that was told by the complainant. The witness (hearing/board member) not only denied being a witness but told a blatant lie themself. Under Exec, Session, is there anyway to address this lie, or is it forever hidden in the Exec, Session?

Thank you for your time in responding.

 

[puzzling]

the board only has authority for as far as it is granted by the bylaws, so first question is what powers are granted to the board in your bylaws?

the membership has the right to overrule the board in any matter that is not exclusively given to the board (see your bylaws again) sadly depending on how often the membership assembles that can take some time. and depending on the exact text in the bylaws, different rules apply on how to overrule the board.

[Josh Martin]

On 9/13/2022 at 9:43 PM, MapsStrauts said:

Maybe I am naïve but the Board, did not accept evidence from the defendant, and acted very arbitrary in determining guilt. What I am reading, is the Board can determine if it is detrimental to the club with, whatever broad stroke they wish. Under this overbroad reasoning, practically any member could be considered detrimental to the club for practically anything and the Board are allowed to do that?

Ultimately, yes, decisions pertaining to whether certain conduct warrants disciplinary action rests with the society (or apparently, under your rules, with the board).

On 9/13/2022 at 9:43 PM, MapsStrauts said:

I would also like clarification on the following. A member of the hearing (Board) committee was addressed in the meeting as a witness to a lie that was told by the complainant. The witness (hearing/board member) not only denied being a witness but told a blatant lie themself. Under Exec, Session, is there anyway to address this lie, or is it forever hidden in the Exec, Session?

Nothing which occurred during executive session may be disclosed unless the board chooses to disclose the information or if the board is ordered to do so by the membership. Even then, it would be highly advisable for the membership to enter executive session to discuss such matters, so that the information at least stays within the society.

[MapsStrauts]

Well, I am back. The old Board has been replaced and the new Board wish to remove the suspension of the member under the situation stated above, issued by the previous Board. There is a majority willing to make the vote to remove the suspension but the ability to do this is being questioned by one member. Can the new Board remove the suspension? Nothing in our by-laws discusses removing only the steps for a hearing and suspension.

[Josh Martin]

On 12/5/2022 at 6:48 PM, MapsStrauts said:

Well, I am back. The old Board has been replaced and the new Board wish to remove the suspension of the member under the situation stated above, issued by the previous Board. There is a majority willing to make the vote to remove the suspension but the ability to do this is being questioned by one member. Can the new Board remove the suspension? Nothing in our by-laws discusses removing only the steps for a hearing and suspension.

I see no reason why the board cannot remove the suspension, however, doing so is a motion to Rescind or Amend Something Previously Adopted. As a result, adoption of this motion will require a 2/3 vote, a vote of a majority of the entire membership (of the board), or a majority vote with previous notice.

I do not believe it would be required to follow the full disciplinary procedures prescribed in the organization's bylaws in order to do this, but it would certainly be advisable for the board to enter executive session.

[Atul Kapur]

Has the suspension already started? Is it completed or ongoing?

Rescind would just apply going forward. It cannot reverse any period that the individual was  suspended prior to it being rescinded or make it as if it never happened.

"35:6 The motions to Rescind and to Amend Something Previously Adopted are not in order under the following circumstances: 
. . . . 
b) When something has been done, as a result of the vote 
on the main motion, that is impossible to undo. (The un-
executed part of an order, however, can be rescinded or 
amended.)"

 

The new board may wish to consider a motion to Rescind and Expunge from the Minutes.

"35:13 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. . . ."

This still doesn't make it as if it never happened.

[Richard Brown]

On 12/5/2022 at 9:48 PM, Atul Kapur said:

This still doesn't make it as if it never happened.

That is true, and the minute entry of the suspension from the meeting at which the suspension took place is not erased or deleted, but merely has a line drawn through it with a notation that the entry was "Rescinded and ordered expunged".   But it still remains, with the line drawn through it, for people to read who want to look back through old minutes.  The fact that it was ordered rescinded and expunged from the minutes will appear in the minutes of the meeting at which the rescission and expungement is ordered.   RONR (12th ed.) §35"13.

Edited to add:  This is a rarely used procedure.  I've seen it used only once, when a newly elected board believed that the "previous board" improperly suspended an officer.

Edited December 6, 2022 at 05:34 AM by Richard Brown
Added last paragraph