Disciplinary investigation spreading.

[Gary Novosielski]

I have a problem with a committee reporting a recommendation and moving to give itself additional instructions.  I don't know if it's out of order, but it seems, well, unseemly.

[J. J.]

On 5/29/2023 at 5:16 PM, Gary Novosielski said:

I have a problem with a committee reporting a recommendation and moving to give itself additional instructions.  I don't know if it's out of order, but it seems, well, unseemly.

A committee appointed to investigate finds something, calls the assembly's attention to it, and asks if it can continue to investigate.  This is "unseemly" how? 

[Dan Honemann]

On 5/29/2023 at 9:34 PM, J. J. said:

A committee appointed to investigate finds something, calls the assembly's attention to it, and asks if it can continue to investigate.  This is "unseemly" how? 

In this respect, the committee is just like any other member.  Perhaps Mr. Novosielski thinks it might be unseemly for a member to offer a resolution such as the following:

Resolved, That I be appointed a committee to investigate allegations regarding the conduct of our member Mr. P, which, if true, would tend to injure the good name of this organization, and that I be instructed, if I conclude the allegations are well-founded, to report resolutions covering my recommendations.

[Gary Novosielski]

On 5/30/2023 at 7:34 AM, Dan Honemann said:

In this respect, the committee is just like any other member.  Perhaps Mr. Novosielski thinks it might be unseemly for a member to offer a resolution such as the following:

Resolved, That I be appointed a committee to investigate allegations regarding the conduct of our member Mr. P, which, if true, would tend to injure the good name of this organization, and that I be instructed, if I conclude the allegations are well-founded, to report resolutions covering my recommendations.

I think it might be, yeah.  Li'l bit.  I can't provide a citation, but I can't see myself seconding it, either.

[J. J.]

The assembly need not follow the committee's recommendation, if it finds it to "unseemly."  That is not a question on if the motion is in order, but if the assembly should adopt it.  You would be free, IMO, to state in debate that the resolution "unseemly," encourage other members to reject it, and vote against it.  That is a very different standard than saying the motion violates some rule. 

In this case, the resolution is in order, even with Mr. Honemann effectively volunteering to serve as a committee of one.  Likewise, the motion:,"Resolved, That a committee of the whole be appointed to investigate allegations regarding the conduct of our member Mr. P, which, if true, would tend to injure the good name of this organization, and that it be instructed, if its conclude the allegations are well-founded, to report resolutions covering its recommendations," would also be in order.  In this case, where there is a video, I would not find it "unseemly," and vote in favor of either.  

 

 

[Dan Honemann]

On 5/30/2023 at 11:19 AM, J. J. said:

The assembly need not follow the committee's recommendation, if it finds it to "unseemly."  That is not a question on if the motion is in order, but if the assembly should adopt it.  You would be free, IMO, to state in debate that the resolution "unseemly," encourage other members to reject it, and vote against it.  That is a very different standard than saying the motion violates some rule. 

In this case, the resolution is in order, even with Mr. Honemann effectively volunteering to serve as a committee of one.  Likewise, the motion:,"Resolved, That a committee of the whole be appointed to investigate allegations regarding the conduct of our member Mr. P, which, if true, would tend to injure the good name of this organization, and that it be instructed, if its conclude the allegations are well-founded, to report resolutions covering its recommendations," would also be in order.  In this case, where there is a video, I would not find it "unseemly," and vote in favor of either.  

 

 

Well, at least in these instances the assembly is taking the first step which RONR, in 63:7-13, tells us is the first of five "basic steps" which must be followed in the absence of any special procedures established by the society. 

A while back you 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)."

This is where we part company.

[J. J.]

On 5/30/2023 at 11:38 AM, Dan Honemann said:

Well, at least in these instances the assembly is taking the first step which RONR, in 63:7-13, tells us is the first of five "basic steps" which must be followed in the absence of any special procedures established by the society. 

A while back you 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)."

This is where we part company.

A "basic step" is not a "basic right of an individual member."  I will also note that, even if the committee has not met, the assembly may adopt charges (though there has to be a reasonable chance to deliberate (63:13 fn. 8)).  I would note (same citation) the assembly is free to adopt charges against the committee's recommendation.  It does not appear to a functional "basic right." 

[Dan Honemann]

On 5/30/2023 at 12:20 PM, J. J. said:

A "basic step" is not a "basic right of an individual member."

The basic right of the member is to be fairly treated, and we are referring to the first of the five basic steps which RONR says must be taken in order to afford him that fair treatment.

 

On 5/30/2023 at 12:20 PM, J. J. said:

I will also note that, even if the committee has not met, the assembly may adopt charges (though there has to be a reasonable chance to deliberate (63:13 fn. 8)).  I would note (same citation) the assembly is free to adopt charges against the committee's recommendation.  It does not appear to a functional "basic right." 

Nothing that is said in 63:13 or its footnote supports the notion that "failing to have an investigatory committee" is permissible.

[J. J.]

On 5/30/2023 at 12:42 PM, Dan Honemann said:

The basic right of the member is to be fairly treated, and we are referring to the first of the five basic steps which RONR says must be taken in order to afford him that fair treatment.

 

Nothing that is said in 63:13 or its footnote supports the notion that "failing to have an investigatory committee" is permissible.

Well, whether or not being investigated, or more correctly having an investigatory committee being appointed, is being "treated fairly" is very subjective, and frankly, not supported in text.

The footnote for 63:13 indicates that the assembly may discharge the committee, and the assembly adopt charges even if the committee has never met.  If this were a right, it would to have an investigating committee appointed, not that there by any type of an investigation.  I am quite skeptical that a committee that might have never met and may never have informed the member that he is being investigated somehow creates a basic right of an individual member.

Now, perhaps this question should be asked.  The assembly adopts a resolution charging Mr. N.  It establishes the adjourned meeting (63:14), adopts the charges (63:19), and send out a notice with proper date (63:82); Mr. N had more than 30 days' notice.  The assembly adopted this motion at a properly called, quorate, regular meeting, however no committee was appointed.  Is the fact that there was no investigating committee sufficient to invalidate the action/  Why or why not?

Edited May 30, 2023 at 05:46 PM by J. J.

[Dan Honemann]

On 5/30/2023 at 1:45 PM, J. J. said:

Now, perhaps this question should be asked.  The assembly adopts a resolution charging Mr. N.  It establishes the adjourned meeting (63:14), adopts the charges (63:19), and send out a notice with proper date (63:82); Mr. N had more than 30 days' notice.  The assembly adopted this motion at a properly called, quorate, regular meeting, however no committee was appointed.  Is the fact that there was no investigating committee sufficient to invalidate the action/  Why or why not?

This question has already been answered.

As previously noted, RONR, in 63:7, tells us that a confidential investigation by a committee is the first of five basic steps which must be followed in the absence of any special procedures established by the society. The initiation of disciplinary proceedings by the appointment of an investigating committee and a confidential investigation by that committee, all as described in 63:8-12, is designed for the protection of the accused just as much as it is for the protection of the society. It is a basic right of individual members who are the subject of disciplinary proceedings to be fairly treated, and RONR clearly tells us what steps must be taken in order to afford members that fair treatment.

[J. J.]

On 5/30/2023 at 7:59 PM, Dan Honemann said:

This question has already been answered.

As previously noted, RONR, in 63:7, tells us that a confidential investigation by a committee is the first of five basic steps which must be followed in the absence of any special procedures established by the society. The initiation of disciplinary proceedings by the appointment of an investigating committee and a confidential investigation by that committee, all as described in 63:8-12, is designed for the protection of the accused just as much as it is for the protection of the society. It is a basic right of individual members who are the subject of disciplinary proceedings to be fairly treated, and RONR clearly tells us what steps must be taken in order to afford members that fair treatment.

Then the process described in the footnote in 63:18 (fn 8), is a violation of that process, because the assembly may adopt charges without that committee investigating (after the committee is discharged) and, potentially, without the soon to be accused even knowing that there was a committee appointed.  How can both positions be reconciled?   

[Dan Honemann]

On 5/30/2023 at 8:06 PM, J. J. said:

Then the process described in the footnote in 63:18 (fn 8), is a violation of that process, because the assembly may adopt charges without that committee investigating (after the committee is discharged) and, potentially, without the soon to be accused even knowing that there was a committee appointed.  How can both positions be reconciled?   

I assume you are referring to the footnote to 63:13 (not 63:18) which reads as follows (emphasis supplied by me):

8. If the investigating committee submits a report that does not recommend preferral of charges, it is within the power of the assembly nevertheless to adopt a resolution that does prefer charges. It is also possible for the assembly to adopt instructions to the committee specifying when it is to report, or even to adopt a motion to Discharge a Committee (36) and thereafter to consider a resolution preferring charges; but in order to provide due process to the accused, any such instructions must allow the investigating committee a reasonable and adequate time to investigate and prepare a report, and the committee may be discharged only if it has had such time yet has failed to complete its report.

There is nothing whatsoever in this footnote that indicates that it is okay to simply skip the appointment of an investigating committee altogether, as happened in the factual situation you just presented, and it clearly states that, in order to provide due process to the accused, the assembly must allow the investigating committee so appointed a reasonable and adequate time to investigate and prepare a report.

[J. J.]

On 5/30/2023 at 8:43 PM, Dan Honemann said:

I assume you are referring to the footnote to 63:13 (not 63:18) which reads as follows (emphasis supplied by me):

8. If the investigating committee submits a report that does not recommend preferral of charges, it is within the power of the assembly nevertheless to adopt a resolution that does prefer charges. It is also possible for the assembly to adopt instructions to the committee specifying when it is to report, or even to adopt a motion to Discharge a Committee (36) and thereafter to consider a resolution preferring charges; but in order to provide due process to the accused, any such instructions must allow the investigating committee a reasonable and adequate time to investigate and prepare a report, and the committee may be discharged only if it has had such time yet has failed to complete its report.

There is nothing whatsoever in this footnote that indicates that it is okay to simply skip the appointment of an investigating committee altogether, as happened in the factual situation you just presented, and it clearly states that, in order to provide due process to the accused, the assembly must allow the investigating committee so appointed a reasonable and adequate time to investigate and prepare a report.

However, that committee need neither meet, nor may the potentially accused member need be informed of its existence, in order for the assembly to adopt charges.  So, how is a member's due process right abridged by something that he may not be aware of, or that may not even happen, before being charged? 

[Dan Honemann]

On 5/30/2023 at 11:39 PM, J. J. said:

However, that committee need neither meet, nor may the potentially accused member need be informed of its existence, in order for the assembly to adopt charges.  So, how is a member's due process right abridged by something that he may not be aware of, or that may not even happen, before being charged? 

Nothing this outrageous is even suggested by anything in RONR, which, in 63:12, tells us that: "Before any action is taken, fairness demands that the committee or some of its members make a reasonable attempt to meet with the accused for frank discussion and to hear his side of the story." 

 

[J. J.]

.

On 5/31/2023 at 7:05 AM, Dan Honemann said:

Nothing this outrageous is even suggested by anything in RONR, which, in 63:12, tells us that: "Before any action is taken, fairness demands that the committee or some of its members make a reasonable attempt to meet with the accused for frank discussion and to hear his side of the story." 

 

You just posted the footnote that says that whatever the committee, if appointed does, it has no bearing to if charges are adopted, "If the investigating committee submits a report that does not recommend preferral of charges, it is within the power of the assembly nevertheless to adopt a resolution that does prefer charges. " 

What the committee does is not relevant to if the member is accused by having charges adopted by the assembly.  None of the subject member's rights are in any way impinged by the committee report, if it does report; the member could vote on the motion to adopt charges.  The investigation of a committee is not part of the due process right of a member, because it is not necessary for a committee to report charges, nor would a committee recommending charges necessarily lead to an assembly adopting charges; it is not a determinate part of the due process to which the member is clearly entitled.

We go to actual committee, if appointed.  The footnote posits a situation where the committee has not reported and, possibly, has never met nor interviewed the accused, i.e.,  "It is also possible for the assembly to adopt instructions to the committee specifying when it is to report, or even to adopt a motion to Discharge a Committee (36) and thereafter to consider a resolution preferring charges; but in order to provide due process to the accused, any such instructions must allow the investigating committee a reasonable and adequate time to investigate and prepare a report, and the committee may be discharged only if it has had such time yet has failed to complete its report RONR tells us that, in such a case, the assembly may discharge the committee, and adopt charges, even though "fairness demands" that the attempt be made."

If this "fairness" was somehow the basic right of an individual member, it would not be possible for the assembly to adopt charges in any circumstance in violation of that right.  The same would be true if this "fairness" was a fundamental principle of parliamentary law. 

 

 

 

[Gary Novosielski]

On 5/30/2023 at 11:39 PM, J. J. said:

However, that committee need neither meet, nor may the potentially accused member need be informed of its existence, in order for the assembly to adopt charges.  So, how is a member's due process right abridged by something that he may not be aware of, or that may not even happen, before being charged? 

You seem to be suggesting that the committee, having had plenty of time to investigate and produce a report, does nothing.   I'm as likely as the next man to look carefully at the rules and posit how they might apply in the limiting case, but it seems to me you're straining the rules to the breaking point. 

Yes, if a committee, having been properly established, appointed, and charged, is completely delinquent in carrying out its charge, the assembly must have a method to reclaim the matter.  But to suggest that this should or could represent a routine way of handling things is not, in my view, worthy of serious consideration.  And it certainly should not be suggested to guests and questioning members as an example of due process.

[Dan Honemann]

J.J., please bear with me a moment or two, and let me see if I can understand exactly what you are saying.

Let's use these facts, which I think are substantially the same as those that you recently posited: At a properly called, quorate, regular meeting, the assembly adopts a resolution charging Mr. N.  It establishes the adjourned meeting (63:14), adopts the charges (63:19), and sends out a notice with proper date (63:21). It does all this without any prior action having been taken. No investigating committee was previously appointed.

I have more than one question, so please bear with me and allow me to ask them one at a time.

1.  When the motion is made to adopt the resolutions described in 63:14 and 63:19, a member raises a point of order to the effect that, as stated in RONR, an investigating committee must first be appointed, citing 63:11, which provides as follows: 

63:11    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).

As the presiding officer, how would you rule on this point of order?

[J. J.]

On 5/31/2023 at 11:52 AM, Dan Honemann said:

J.J., please bear with me a moment or two, and let me see if I can understand exactly what you are saying.

Let's use these facts, which I think are substantially the same as those that you recently posited: At a properly called, quorate, regular meeting, the assembly adopts a resolution charging Mr. N.  It establishes the adjourned meeting (63:14), adopts the charges (63:19), and sends out a notice with proper date (63:21). It does all this without any prior action having been taken. No investigating committee was previously appointed.

I have more than one question, so please bear with me and allow me to ask them one at a time.

1.  When the motion is made to adopt the resolutions described in 63:14 and 63:19, a member raises a point of order to the effect that, as stated in RONR, an investigating committee must first be appointed, citing 63:11, which provides as follows: 

63:11    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).

As the presiding officer, how would you rule on this point of order?

Not to muddy the waters, assume that assembly has entered executive session.

The presiding officer should rule the motion out of order, under the regular rules.   That member, or another member, could move "to suspend the rules and permit the resolution to be introduced."  A 2/3 vote would be required.

The member could, without suspending the rules, move that he "be appointed a committee to investigate allegations regarding the conduct of our member Mr. P, which, if true, would tend to injure the good name of this organization, and that I be instructed, if I conclude the allegations are well-founded, to report resolutions covering my recommendations."  Such a motion would require a majority vote and could report back very quickly.  It would be up to the assembly to determine if this is sufficient. 

Based on the footnote, the assembly may charge, ultimately, if the committee has never met, nor if it, or one of its members, has ever talked to the potential accused, nor if the potential accused member is even aware of the committee being appointed.  Note that the member that is subject to the potential investigation has none of his rights of membership limited at this point. 

 

 

 

 

[Dan Honemann]

So am I right in thinking that, in the situation I described, you would rule that the point of order was well taken?

Never mind, I see that you have already indicated that you regard the motion as being out of order.

[Dan Honemann]

2.  Assuming all of the same facts (including being in executive session), except that, in addition to 

On 6/2/2023 at 10:54 AM, J. J. said:

Note that the member that is subject to the potential investigation has none of his rights of membership limited at this point. 

 

Let's continue with this for a moment. Assume all the same facts as previously described except that, in addition to adopting the resolutions described in 63:14 and 63:19, the assembly also adopts the resolution described in 63:20.  Would you agree with me that the adoption of the 63:20 resolution is null and void, giving rise to a continuing breach?

[J. J.]

On 6/2/2023 at 12:15 PM, Dan Honemann said:

2.  Assuming all of the same facts (including being in executive session), except that, in addition to 

Let's continue with this for a moment. Assume all the same facts as previously described except that, in addition to adopting the resolutions described in 63:14 and 63:19, the assembly also adopts the resolution described in 63:20.  Would you agree with me that the adoption of the 63:20 resolution is null and void, giving rise to a continuing breach?

No, as the assembly has adopted the resolution charging the member.  The resolutions described in 63:14 and 63:19 would be subject to a timely point of order.  The requirement for 63:20 to be adopted is the adoption of a motion establishing charges and setting the trial. 

[J. J.]

On 5/31/2023 at 11:36 AM, Gary Novosielski said:

You seem to be suggesting that the committee, having had plenty of time to investigate and produce a report, does nothing.   I'm as likely as the next man to look carefully at the rules and posit how they might apply in the limiting case, but it seems to me you're straining the rules to the breaking point. 

Yes, if a committee, having been properly established, appointed, and charged, is completely delinquent in carrying out its charge, the assembly must have a method to reclaim the matter.  But to suggest that this should or could represent a routine way of handling things is not, in my view, worthy of serious consideration.  And it certainly should not be suggested to guests and questioning members as an example of due process.

If there is a basic right of an individual member to be investigated, then it could not be ignored when the committee fails. The assembly could not prefer charges, if this was the case. 

[Dan Honemann]

On 6/2/2023 at 12:15 PM, Dan Honemann said:

2.  Assuming all of the same facts (including being in executive session), except that, in addition to 

Let's continue with this for a moment. Assume all the same facts as previously described except that, in addition to adopting the resolutions described in 63:14 and 63:19, the assembly also adopts the resolution described in 63:20.  Would you agree with me that the adoption of the 63:20 resolution is null and void, giving rise to a continuing breach?

 

On 6/2/2023 at 3:52 PM, J. J. said:

No, as the assembly has adopted the resolution charging the member.  The resolutions described in 63:14 and 63:19 would be subject to a timely point of order.  The requirement for 63:20 to be adopted is the adoption of a motion establishing charges and setting the trial. 

So suppose a special meeting is held prior to the date of the meeting set for trial and after delivery of the official notice to the accused.  Are you saying that the accused has validly been deprived of his right to attend this special meeting and to fully participate in its proceedings?  

[J. J.]

On 6/2/2023 at 4:32 PM, Dan Honemann said:

 

So suppose a special meeting is held prior to the date of the meeting set for trial and after delivery of the official notice to the accused.  Are you saying that the accused has validly been deprived of his right to attend this special meeting and to fully participate in its proceedings?  

The member has been notified.  RONR tells us that the assembly may suspend the rights (except as they relate to the trial, an important exception) of a member that is charged and he is formally notified.  The language in 63:20 suspends Mr. N's right to attend that special meeting, and any subsequent regular meeting before the trial.  Note that the assembly may decide not to suspend Mr. N's right to attend the meeting. 

 

[Dan Honemann]

On 6/2/2023 at 4:32 PM, Dan Honemann said:

 

So suppose a special meeting is held prior to the date of the meeting set for trial and after delivery of the official notice to the accused.  Are you saying that the accused has validly been deprived of his right to attend this special meeting and to fully participate in its proceedings?  

 

On 6/2/2023 at 7:30 PM, J. J. said:

The member has been notified.  RONR tells us that the assembly may suspend the rights (except as they relate to the trial, an important exception) of a member that is charged and he is formally notified.  The language in 63:20 suspends Mr. N's right to attend that special meeting, and any subsequent regular meeting before the trial.  Note that the assembly may decide not to suspend Mr. N's right to attend the meeting. 

 

So I gather that's a "yes".  If so, I'm afraid that I have to disagree.