Disciplinary investigation spreading.

[J. J.]

May an investigatory committee expand its investigation to another member, based on evidence it discovers.

The committee was appointed to investigate Mr. N, a member (63:10).  They view surveillance tapes from the Matterhorn Restaurant, and see him apparently provoking a needless and violent disturbance (63:19).  They also spot another member, Mr. P, stealing a woman's purse in the confusion caused by the disturbance.    They would consider stealing a purse to be "conduct tending to injure the good name of the organization." 

Even though they were not appointed to investigate Mr. P, may they bring charges against him? 

[Gary Novosielski]

On 5/24/2023 at 1:39 PM, J. J. said:

The committee was appointed to investigate Mr. N, a member

It wasn't me! It was the one-armed man!

[Rob Elsman]

No committee may operate outside of the perimeters of its charge.

[J. J.]

On 5/24/2023 at 5:19 PM, Rob Elsman said:

No committee may operate outside of the perimeters of its charge.

Do you have a citation? 

[Rob Elsman]

RONR (12th ed.) 63:9-10. For an investgative committee to go beyond its charge is insubordination.

[J. J.]

On 5/24/2023 at 6:04 PM, Rob Elsman said:

RONR (12th ed.) 63:9-10. For an investgative committee to go beyond its charge is insubordination.

Neither resolution specifically prohibits the committee from discovering something involving something else.  See 6:13 fn. 8.

[Rob Elsman]

RONR (12th ed.) 56:68, item 4, tells us that when certain things are specifically authorized, other things of the same class are understood to be prohibited.

[J. J.]

On 5/24/2023 at 6:14 PM, Rob Elsman said:

RONR (12th ed.) 56:68, item 4, tells us that when certain things are specifically authorized, other things of the same class are understood to be prohibited.

The motion authorized an investigation, and in the course of that investigation, something was discovered.

Had the committee started looking at traffic cameras, and saw Mr. P hit a parked car and drive off, but it was unrelated to Mr. N, I would agree that this wa sthe committee  exceeding its instructions. 

[Josh Martin]

On 5/24/2023 at 12:39 PM, J. J. said:

May an investigatory committee expand its investigation to another member, based on evidence it discovers.

The committee was appointed to investigate Mr. N, a member (63:10).  They view surveillance tapes from the Matterhorn Restaurant, and see him apparently provoking a needless and violent disturbance (63:19).  They also spot another member, Mr. P, stealing a woman's purse in the confusion caused by the disturbance.    They would consider stealing a purse to be "conduct tending to injure the good name of the organization." 

Even though they were not appointed to investigate Mr. P, may they bring charges against him? 

No, I do not think so. I concur with Mr. Elsman that the committee may not, on its own authority, expand the charge given to it.

If the committee discovers this information and desires to expand its investigation to consider bringing charges against Mr. P, the committee should report such matters to the assembly and request that the assembly expand the committee's charge, perhaps in a manner such as this.

"The committee has been considering the matter of the investigation into the allegations concerning Mr. N. In the course of the committee's investigation, the committee has come across information concerning possible conduct by Mr. P which, if found to be correct, would tend to injure the good name of this organization. Due to connections between these events, the committee believes that it would be in the best interests of the society for the same committee to investigate both matters.

On behalf of the committee, I move to amend the resolution creating the investigating committee regarding Mr. N to expand its scope to include an investigation of the possible conduct by Mr. P and that the committee be instructed, if it concludes the allegations are well-founded, to report resolutions covering its recommendations."

On 5/24/2023 at 5:09 PM, J. J. said:

Neither resolution specifically prohibits the committee from discovering something involving something else.  See 6:13 fn. 8.

Yes, certainly the committee is not prohibited from discovering something else in the course of its investigation. But that does not mean the committee is authorized to make recommendations to prefer charges against other persons.

The first step in disciplinary proceedings involving a member is a resolution to appoint an investigative committee. In the circumstances you describe, this has not yet occurred with respect to Mr. P.

Edited May 24, 2023 at 10:30 PM by Josh Martin

[J. J.]

On 5/24/2023 at 6:29 PM, Josh Martin said:

No, I do not think so. I concur with Mr. Elsman that the committee may not, on its own authority, expand the charge given to it.

If the committee discovers this information and desires to expand its investigation to consider bringing charges against Mr. P, the committee should report such matters to the assembly and request that the assembly expand the committee's charge, perhaps in a manner such as this.

"The committee has been considering the matter of the investigation into the allegations concerning Mr. N. In the course of the committee's investigation, the committee has come across information concerning possible conduct by Mr. P which, if found to be correct, would tend to injure the good name of this organization. Due to connections between these events, the committee believes that it would be in the best interests of the society for the same committee to investigate both matters.

On behalf of the committee, I move to amend the resolution creating the investigating committee regarding Mr. N to expand its scope to include an investigation of the possible conduct by Mr. P and that the committee be instructed, if it concludes the allegations are well-founded, to report resolutions covering its recommendations."

Yes, certainly the committee is not prohibited from discovering something else in the course of its investigation. But that does not mean the committee is authorized to make recommendations to prefer charges against other persons.

The first step in disciplinary proceedings involving a member is a resolution to appoint an investigative committee. In the circumstances you describe, this has not yet occurred with respect to Mr. P.

What, if anything, would prevent the assembly from giving the committee this charge and the committee immediately reporting back what they discovered? 

(Assuming that the committee did talk with Mr. P.)

[Rob Elsman]

"What they discovered" comes out at trial. Otherwise, to protect the good name of the person involved, nothing of "what they discovered" should leave the committee.

[Dan Honemann]

On 5/24/2023 at 1:39 PM, J. J. said:

May an investigatory committee expand its investigation to another member, based on evidence it discovers.

The committee was appointed to investigate Mr. N, a member (63:10).  They view surveillance tapes from the Matterhorn Restaurant, and see him apparently provoking a needless and violent disturbance (63:19).  They also spot another member, Mr. P, stealing a woman's purse in the confusion caused by the disturbance.    They would consider stealing a purse to be "conduct tending to injure the good name of the organization." 

Even though they were not appointed to investigate Mr. P, may they bring charges against him? 

I agree that the correct answer to this question in "no".

The initiation of disciplinary proceedings by the appointment of an investigating committee and a confidential investigation by that committee, all as described in RONR, is an essential step in a fair disciplinary process, and is designed for the protection of the accused just as much as it is for the protection of the society. 

[J. J.]

On 5/24/2023 at 6:45 PM, Rob Elsman said:

"What they discovered" comes out at trial. Otherwise, to protect the good name of the person involved, nothing of "what they discovered" should leave the committee.

That is covered in this motion:

"The committee has been considering the matter of the investigation into the allegations concerning Mr. N. In the course of the committee's investigation, the committee has come across information concerning possible conduct by Mr. P which, if found to be correct, would tend to injure the good name of this organization. Due to connections between these events, the committee believes that it would be in the best interests of the society for the same committee to investigate both matters.

On behalf of the committee, I move to amend the resolution creating the investigating committee regarding Mr. N to expand its scope to include an investigation of the possible conduct by Mr. P and that the committee be instructed, if it concludes the allegations are well-founded, to report resolutions covering its recommendations."

[J. J.]

On 5/24/2023 at 6:50 PM, Dan Honemann said:

I agree that the correct answer to this question in "no".

The initiation of disciplinary proceedings by the appointment of an investigating committee and a confidential investigation by that committee, all as described in RONR, is an essential step in a fair disciplinary process, and is designed for the protection of the accused just as much as it is for the protection. of the society. 

Yet the assembly may properly ignore what the committee recommends, to the point of adopting its own charges not based on the recommendations. 

[Rob Elsman]

If the investigative committee decides not to recommend charges, the accused is considered fully exonerated.

[J. J.]

On 5/24/2023 at 6:56 PM, Rob Elsman said:

If the investigative committee decides not to recommend charges, the accused is considered fully exonerated.

No, according to 63:13, fn. 8.  The assembly could, if there has been adequate time to investigate, discharge the committee and adopt charges.   Likewise, it may adopt charges against the recommendation of the committee. 

Though it does not specifically say this, we have discussed the possibility of either sending the question to a committee of the whole, or of one, that would report back at the same session. 

Edited May 24, 2023 at 11:13 PM by J. J.
Add a sentence.

[Dan Honemann]

On 5/24/2023 at 6:54 PM, J. J. said:

Yet the assembly may properly ignore what the committee recommends, to the point of adopting its own charges not based on the recommendations. 

The fact that this is so is no excuse for failure to follow the procedure set forth in RONR for the initiation of disciplinary proceedings.

[Rob Elsman]

Notwithstanding what the footnote says, the investigative committee will have examined the facts and deliberated on the proper consequences of its investigation. The superior body will not have done so. As a practical matter, the committee's decision not to return a recommendation for charges will end the disciplinary procedure, and the accused will be exonerated.

[J. J.]

On 5/24/2023 at 7:17 PM, Dan Honemann said:

The fact that this is so is no excuse for failure to follow the procedure set forth in RONR for the initiation of disciplinary proceedings.

It does show that the committee's role is not determinative.  If the recommendation may be ignored by the assembly, how could it be an "essential step?"  That is not rhetorical.  

[Dan Honemann]

On 5/24/2023 at 7:28 PM, J. J. said:

It does show that the committee's role is not determinative.  If the recommendation may be ignored by the assembly, how could it be an "essential step?"  That is not rhetorical.  

Well, without belaboring the point, I think it suffices to say that RONR, in 63:7-13, tells us that it is the first of five "basic steps" which "must be followed" in the absence of any special procedures established by the society. 

[J. J.]

On 5/24/2023 at 7:27 PM, Rob Elsman said:

Notwithstanding what the footnote says, the investigative committee will have examined the facts and deliberated on the proper consequences of its investigation. The superior body will not have done so. As a practical matter, the committee's decision not to return a recommendation for charges will end the disciplinary procedure, and the accused will be exonerated.

The facts may be suspected, or known, outside of the assembly.  Further, even a report "exonerating" a member may be used to convict. 

[J. J.]

On 5/24/2023 at 7:46 PM, Dan Honemann said:

Well, without belaboring the point, I think it suffices to say that RONR, in 63:7-13, tells us that it is the first of five "basic steps" which "must be followed" in the absence of any special procedures established by the society. 

I have no disagreement that the assembly may create special procedures for disciplinary action.  That said, I would question if even failing to have an investigatory committee would invalidate the disciplinary action.  I would question if a member has a basic right to be investigated by a committee (though doing so would usually be advisable).

[Josh Martin]

On 5/24/2023 at 5:38 PM, J. J. said:

What, if anything, would prevent the assembly from giving the committee this charge and the committee immediately reporting back what they discovered? 

I suppose nothing, other than a desire for the committee to avoid the awkward follow-up questions of how the committee completed its investigation so quickly.

[J. J.]

On 5/25/2023 at 9:04 AM, Josh Martin said:

I suppose nothing, other than a desire for the committee to avoid the awkward follow-up questions of how the committee completed its investigation so quickly.

I would not find that an issue in this case, because there is a video.  I have observed many of these things where the information is public and the organization learns about the situation from public sources. 

[puzzling]

While I agree with that the investigation of he conduct of Mr P. is a seperate issue and needs therefore a seperate motion, it would be very strange if the motion was not adopted.

I am puzzling if amending the previous motion is the best way forward. Because it  is a motion to amend something previously Adopted and requires a 2/3 vote or notice.

A separate motion to have a committee (of the same people) investigate mr P's  conduct only needs a majority.

 

Edited May 25, 2023 at 07:32 PM by puzzling
NP problem