Club Complaint Process

[Guest CESmith]

We have come across an issue where our Board is in the process of filing a complaint against a member.  The issue we have is that per our By Laws the Complaint Committee is composed of not less than three Board members.  Since all Board members are filing the complaint how do we identify three Board members to be considered impartial to review the Complaint.  Can we make an exception in this case and not have three Board members on the Complaint Committee and use three or more impartial club members?

[puzzling]

On 4/4/2023 at 6:36 AM, Guest CESmith said:

We have come across an issue where our Board is in the process of filing a complaint against a member.  The issue we have is that per our By Laws the Complaint Committee is composed of not less than three Board members.  Since all Board members are filing the complaint how do we identify three Board members to be considered impartial to review the Complaint.  Can we make an exception in this case and not have three Board members on the Complaint Committee and use three or more impartial club members?

Can you quote the relevant bylaws provisions verbatim? 

You cannot overrule the bylaws (except by amending them) 

If the bylaws don't prescribe the size of the committee you could think of 3 members of the board, 3 members selected by the complainee (the person who was complained about)  and some selected by the 6 selected.

But I am not sure if this is possible because I dont know your bylaws

[Guest CESmith]

Any member may prefer charges against a member for alleged misconduct prejudicial to the best interests of the Club or the breed. Written charges with specifications must be filed in duplicate with the Secretary together with a deposit of $25.00, which shall be forfeited if the Board or a Committee following a hearing does not sustain such charges. 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, if proven, might constitute conduct prejudicial to the best interests of the Club or the breed. If the Board considers that the charges do not allege conduct, which would be prejudicial to the best interests of the Club of the breed, it may refuse to entertain jurisdiction. If the Board entertains jurisdiction of the charges it shall fix a date for a hearing by the Board or a committee of not less than three members of the Board,

[Richard Brown]

On 4/4/2023 at 7:57 PM, Guest CESmith said:

If the Board entertains jurisdiction of the charges it shall fix a date for a hearing by the Board or a committee of not less than three members of the Board,

Why are all members of  the board making the complaint rather than just one member? It looks like the board is creating its own problem.  

One possible work-around I see is for your membership to interpret the bylaws as  not granting  the board the exclusive right to hear disciplinary matters and that the membership, rather than the board, can utilize the provisions of chapter XX of RONR for disciplinary matters. 

One other possible work around is for the accused to agree in writing to permit a trial Commitee of non-board members to hear his case and to be bound by its decision. 

I’m interested in the opinions of my colleagues. 

 

 

[J. J.]

On 4/4/2023 at 8:57 PM, Guest CESmith said:

Any member may prefer charges against a member for alleged misconduct prejudicial to the best interests of the Club or the breed. Written charges with specifications must be filed in duplicate with the Secretary together with a deposit of $25.00, which shall be forfeited if the Board or a Committee following a hearing does not sustain such charges. 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, if proven, might constitute conduct prejudicial to the best interests of the Club or the breed. If the Board considers that the charges do not allege conduct, which would be prejudicial to the best interests of the Club of the breed, it may refuse to entertain jurisdiction. If the Board entertains jurisdiction of the charges it shall fix a date for a hearing by the Board or a committee of not less than three members of the Board,

The appointment of and referral to a committee is a rule in the nature of a rule of order (50:8).  The Board could suspend the rules and appoint a committee made up of non Board members and refer the matter to this board.  It would require a 2/3 vote. 

 

[Guest CESmith]

@Richard Brown Unfortunately, the complaint is filed by the entire Board because the issue involves the entire board.  If only one Board member files the complaint it will still look impartial to have the Board review the complaint since the actions were against the "Board"

@J. J.  That was the answer I was looking for.  Can the Board agree to use an outside committee to handle the complaint even though the By Laws state "not less than three Board Members"

[J. J.]

On 4/5/2023 at 5:55 PM, Guest CESmith said:

@Richard Brown Unfortunately, the complaint is filed by the entire Board because the issue involves the entire board.  If only one Board member files the complaint it will still look impartial to have the Board review the complaint since the actions were against the "Board"

@J. J.  That was the answer I was looking for.  Can the Board agree to use an outside committee to handle the complaint even though the By Laws state "not less than three Board Members"

 

I think the rules could be suspended to name a committee without board members (see 2:20-2:21; and 25:2 fn. 5). 

[Atul Kapur]

How is this a rule in the nature of a rule of order?

[J. J.]

On 4/5/2023 at 10:45 PM, Atul Kapur said:

How is this a rule in the nature of a rule of order?

50:8 indicates that the resolution creating a standing committee is a rule in the nature of a rule of order.  Clearly, who can be appointed to a committee is the transaction of business within a meeting. 

[Gary Novosielski]

The requirement that a committee have not less than three board members of the board does not seem to preclude having a number of other members in addition, does it?

[Josh Martin]

On 4/7/2023 at 5:07 PM, Gary Novosielski said:

The requirement that a committee have not less than three board members of the board does not seem to preclude having a number of other members in addition, does it?

Certainly, the wording provided in the bylaws permits additional board members on the committee. I think it is ambiguous whether the rule permits the appointment of non-board members. It certainly does not permit the appointment of a committee with fewer than three board members - such as a committee with zero board members, which appears to be the goal.

On 4/7/2023 at 4:55 PM, J. J. said:

50:8 indicates that the resolution creating a standing committee is a rule in the nature of a rule of order.  Clearly, who can be appointed to a committee is the transaction of business within a meeting. 

Yes, but the committee itself has continuing existence beyond the present session. So I am not inclined to think that it is in order to suspend the rules pertaining to the membership of the committee, unless the rule so provides.

On 4/4/2023 at 12:36 AM, Guest CESmith said:

Can we make an exception in this case and not have three Board members on the Complaint Committee and use three or more impartial club members?

On 4/4/2023 at 7:57 PM, Guest CESmith said:

If the Board entertains jurisdiction of the charges it shall fix a date for a hearing by the Board or a committee of not less than three members of the Board,

In my view, the rule in question does not permit an exception.

A potential workaround occurs to me, however, which would be as follows:

• The board appoints a committee consisting of three or more board members and also instructs the committee to create a subcommittee and authorizes the committee to appoint persons who are not members of the committee to the subcommittee.
• The committee appoints a subcommittee consisting entirely of non-board members.
• The committee proceeds with the disciplinary procedures with the real work being performed by the subcommittee, with the committee simply serving to approve the subcommittee's recommendations as needed.

"A committee (except a committee of the whole, 52) can appoint subcommittees, which are responsible to and report to the committee and not to the assembly. Subcommittees must consist of members of the committee, except when otherwise authorized by the society in cases where the committee is appointed to take action that requires the assistance of others." RONR (12th ed.) 50:15

In the long run, the best solution would be to amend the bylaws to provide more flexibility in the rule.

Edited April 8, 2023 at 02:03 PM by Josh Martin

[J. J.]

On 4/8/2023 at 10:01 AM, Josh Martin said:

 

Yes, but the committee itself has continuing existence beyond the present session. So I am not inclined to think that it is in order to suspend the rules pertaining to the membership of the committee, unless the rule so provides.

 

50:8 certainly seems to say that the composition of a committee is a rule in the nature of a rule of order, i.e. the board could create and populate this committee by a rule of order. 

[Josh Martin]

On 4/8/2023 at 10:21 AM, J. J. said:

50:8 certainly seems to say that the composition of a committee is a rule in the nature of a rule of order, i.e. the board could create and populate this committee by a rule of order. 

I do not disagree. Nonetheless, "Rules that have their application outside of the session which is in progress cannot be suspended." RONR (12th ed.) 25:13

[Richard Brown]

On 4/9/2023 at 9:03 AM, Josh Martin said:

I do not disagree. Nonetheless, "Rules that have their application outside of the session which is in progress cannot be suspended." RONR (12th ed.) 25:13

If the board is suspending the rules and creating (and appointing) a committee of non-board members during a board meeting, how is that taking action outside of the session which is in progress? The action for which the rule is being suspended is taking place during that very session.

[J. J.]

On 4/9/2023 at 11:42 AM, Richard Brown said:

If the board is suspending the rules and creating (and appointing) a committee of non-board members during a board meeting, how is that taking action outside of the session which is in progress? The action for which the rule is being suspended is taking place during that very session.

That would be my opinion.

The committee does continue to exist, but not how the assembly chooses its members does not.  I would have no doubt that the rules could be suspended to permit a plurality to choose the members, even though the committee would continue to exist after the meeting ends.

[Gary Novosielski]

On 4/9/2023 at 11:42 AM, Richard Brown said:

If the board is suspending the rules and creating (and appointing) a committee of non-board members during a board meeting, how is that taking action outside of the session which is in progress? The action for which the rule is being suspended is taking place during that very session.

The action takes place within the meeting, but the application occurs outside of it.

[J. J.]

On 4/9/2023 at 2:40 PM, Gary Novosielski said:

The action takes place within the meeting, but the application occurs outside of it.

Does it?  The appointment takes place within the meeting.  They may be committee members outside of the meeting. 

[Gary Novosielski]

On 4/9/2023 at 4:40 PM, J. J. said:

Does it?  The appointment takes place within the meeting.  They may be committee members outside of the meeting. 

The rule "has application" outside of the meeting because it sets the composition of the committee in its future meetings.  The appointment of the committee may take place within that session, but the committee has not even met yet at that point, and will not meet until after that meeting is adjourned.  That is what the rule is applicable to--the continuing composition of the committee.

The suspension of a rule ends when the session during which it is moved ends.  So the rule on the composition of the committee would snap back into effect, and that's no way to run a railroad.

The example in 25:13 is on point:

Rules that have their application outside of the session which is in progress cannot be suspended. For example, a policy prohibiting total contributions to any one charitable organization in excess of $500.00 in any one calendar year is a rule which has its application outside of a meeting context, and thus cannot be suspended so as to permit the adoption of a motion to make a contribution in excess of the specified amount....

Although a standing committee can be established by a Special Rule of Order, that does not mean that is "in the nature of a rule of order" as defined when deciding what rules can be suspended.  Establishing a committee does not relate to the orderly conduct of business within the context of a meeting.  It establishes a separate body which meets on its own schedule and is not part of the session at which it may have been established or appointed.

Being a rule of order is not, alone, a sufficient condition for suspensibility. It must also be a rule that has application wholly within the context of the meeting in progress.

So I believe that a rule in the bylaws providing that a certain committee shall have a certain composition may not be suspended unless it provides for its own suspension.  

Edited April 9, 2023 at 10:11 PM by Gary Novosielski

[Josh Martin]

On 4/9/2023 at 11:27 AM, J. J. said:

That would be my opinion.

The committee does continue to exist, but not how the assembly chooses its members does not.  I would have no doubt that the rules could be suspended to permit a plurality to choose the members, even though the committee would continue to exist after the meeting ends.

I have no disagreement that the rules could be suspended to permit a plurality to elect the committee's members. But the situation here is not simply "how the assembly chooses its members." The rule relates to the members themselves. If the organization's bylaws provide that the committee shall consist of at least three board members, and the committee consists of fewer than three board members, then the composition of the committee continues to conflict with the bylaws throughout the duration of the committee's existence, or until the committee has at least three board members.

[J. J.]

On 4/10/2023 at 7:48 AM, Josh Martin said:

I have no disagreement that the rules could be suspended to permit a plurality to elect the committee's members. But the situation here is not simply "how the assembly chooses its members." The rule relates to the members themselves. If the organization's bylaws provide that the committee shall consist of at least three board members, and the committee consists of fewer than three board members, then the composition of the committee continues to conflict with the bylaws throughout the duration of the committee's existence, or until the committee has at least three board members.

Those same members elected by plurality will be on the committee outside of the meeting.  Electing non-members is still a question of how the choose non-members of the committee.

[J. J.]

On 4/9/2023 at 6:09 PM, Gary Novosielski said:

Although a standing committee can be established by a Special Rule of Order, that does not mean that is "in the nature of a rule of order" as defined when deciding what rules can be suspended.  Establishing a committee does not relate to the orderly conduct of business within the context of a meeting.  It establishes a separate body which meets on its own schedule and is not part of the session at which it may have been established or appointed.

Being a rule of order is not, alone, a sufficient condition for suspensibility. It must also be a rule that has application wholly within the context of the meeting in progress.

 

The first test is, "Is this a rule in the nature of a rule of order."  The test I recommend is, if this rule was not in the bylaws, could it be adopted as a rule of order?  The answer is yes, based on 50:8.

Some rules of order cannot be suspended, I agree.  Would suspending this rule violate 23:6 in any way.  The closest is a), however, the motion to appoint someone to a committee is not, in this case, a main motion.  Even if we were to ignore the footnote, a) would still not apply. 

The appointment itself takes place within the meeting, so the requirement to appoint a member can be suspended.

If the society, in general, had a rule said, only members can be appointed to committees, could the society appoint nonmembers to that committee?  50:12 strongly indicates that the assembly could suspend that rule and do so.  Without such a rule, the assembly could without suspending anything. 

[Atul Kapur]

On 4/10/2023 at 1:37 PM, J. J. said:

The appointment itself takes place within the meeting, so the requirement to appoint a member can be suspended.

This point has already been refuted

On 4/9/2023 at 6:09 PM, Gary Novosielski said:

The rule "has application" outside of the meeting because it sets the composition of the committee in its future meetings.  The appointment of the committee may take place within that session, but the committee has not even met yet at that point, and will not meet until after that meeting is adjourned.  That is what the rule is applicable to--the continuing composition of the committee.

The suspension of a rule ends when the session during which it is moved ends.  So the rule on the composition of the committee would snap back into effect, and that's no way to run a railroad.

The example in 25:13 is on point:

Rules that have their application outside of the session which is in progress cannot be suspended. For example, a policy prohibiting total contributions to any one charitable organization in excess of $500.00 in any one calendar year is a rule which has its application outside of a meeting context, and thus cannot be suspended so as to permit the adoption of a motion to make a contribution in excess of the specified amount....

 

[J. J.]

On 4/10/2023 at 1:39 PM, Atul Kapur said:

This point has already been refuted

 

No, it has not.

A motion to elect by plurality will have the effect outside of the meeting.  The members will be members of the committee even if elected by plurality.

50:8 notes that establishment of a standing, including giving it functions outside of the assembly, without instruction (first bullet point) is a rule in the nature of a rule of order.  That is clearly something that happens apart from a meeting. 

 

[J. J.]

On 4/10/2023 at 1:39 PM, Atul Kapur said:

This point has already been refuted

 

Let me put it this way.

The assembly adopts a special rule establishing a committee on discipline, a standing committee.  I think that would be possible.

Could the assemble, after creating and  appointing members of such a committee, move to suspend the rules and "elect A, B and C [not members of the standing committee] to serve as the trial committee the specific disciplinary case of Mr. Smith?"

 

[Josh Martin]

On 4/10/2023 at 12:14 PM, J. J. said:

Those same members elected by plurality will be on the committee outside of the meeting.

Sure. But the plurality vote occurs only at the meeting. On the other hand, the persons on the committee continue to be board members (or not) after the meeting adjourns.

On 4/10/2023 at 12:14 PM, J. J. said:

Electing non-members is still a question of how the choose non-members of the committee.

I continue to maintain that there is a distinction between the process by which the members are selected and the status of the members themselves. The former occurs solely within a meeting. The latter does not. I don't see how it's possible to escape the fact that the committee and its members continue to exist beyond the board meeting, and the committee will continue to be in compliance (or not) with the rule that the committee shall consist of at least three board members.

On 4/10/2023 at 12:37 PM, J. J. said:

If the society, in general, had a rule said, only members can be appointed to committees, could the society appoint nonmembers to that committee?  50:12 strongly indicates that the assembly could suspend that rule and do so.  Without such a rule, the assembly could without suspending anything. 

I don't agree with this reading of 50:12. Certainly I am in agreement that, in the absence of any rule on this subject, 50:12 provides that the society can appoint persons who are not members of the society to a committee. But 50:12 doesn't state anything with regard to whether a society's rule on this subject can be suspended.

"It is possible for persons who are not members of the assembly or the society to be appointed to committees—even to the position of committee chairman—but control over each such appointment is reserved to the assembly in the individual case." RONR (12th ed.) 50:12

On 4/10/2023 at 1:05 PM, J. J. said:

The assembly adopts a special rule establishing a committee on discipline, a standing committee.  I think that would be possible.

Could the assemble, after creating and  appointing members of such a committee, move to suspend the rules and "elect A, B and C [not members of the standing committee] to serve as the trial committee the specific disciplinary case of Mr. Smith?"

I have no idea whether such a motion is in order or whether it is necessary to suspend the rules to adopt this motion, since we have been provided no information concerning the society's rule regarding the committee on discipline.