Disciplinary investigation spreading.

[J. J.]

On 6/2/2023 at 8:15 PM, Dan Honemann said:

 

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

In fairness, the syntax of your question was a bit confusing. 

Once a member has been charge and the trial set, the member may have some or all of his membership rights suspended, except to those relating to a trial. 

I do not believe it is the basic right of an individual member for an investigatory committee to be appointed before the assembly considers disciplinary action against that member.  In other words, if the assembly were to adopt charges without appointing an investigatory committee, it would be too late to raise a point of order after the charges were adopted.

[Dan Honemann]

On 6/2/2023 at 9:17 PM, J. J. said:

In fairness, the syntax of your question was a bit confusing. 

Once a member has been charge and the trial set, the member may have some or all of his membership rights suspended, except to those relating to a trial. 

I do not believe it is the basic right of an individual member for an investigatory committee to be appointed before the assembly considers disciplinary action against that member.  In other words, if the assembly were to adopt charges without appointing an investigatory committee, it would be too late to raise a point of order after the charges were adopted.

Yes, I understand you to be saying that if an assembly initiates disciplinary proceedings and prefers charges by the adoption of the resolutions described in 63:14-20 without having done any of the things described in 63:8-12, these resolutions, having been offered by a member unsupported by an investigating committee's recommendation, should have been ruled out of order by the chair as noted in 63:11, but if this was not done and no point of order was raised at the time, the resolutions have been validly adopted. 

I disagree. I think that the accused has been deprived of his basic rights as a member unfairly and without due process, and that the resolutions so adopted are null and void.

[J. J.]

On 6/3/2023 at 12:35 AM, Dan Honemann said:

Yes, I understand you to be saying that if an assembly initiates disciplinary proceedings and prefers charges by the adoption of the resolutions described in 63:14-20 without having done any of the things described in 63:8-12, these resolutions, having been offered by a member unsupported by an investigating committee's recommendation, should have been ruled out of order by the chair as noted in 63:11, but if this was not done and no point of order was raised at the time, the resolutions have been validly adopted. 

I disagree. I think that the accused has been deprived of his basic rights as a member unfairly and without due process, and that the resolutions so adopted are null and void.

The member, in the scenario described in the footnote, does not know that the committee has been formed and the committee has not taken any action, yet the assembly may adopt charges.  That is considered to be treating the member fairly and proper due process, in RONR.  I do not believe that adopting a motion, that has not been carried out, and for which the member is not informed, treats a member any less fairly than entertaining (by a 2/3 vote) charges.

Further, 63:5 tells us that a member has a right that allegations be made by charges against him on "reasonable ground."  It notes that "If thus accused," he acquires several due process rights, including a right "to be treated fairly."  The due process rights are not triggered until the member is charged; there is no accused member until the charges are adopted.  Even if there is a committee which investigates and reports, the member may not face charges and never be the "accused."

 

[Dan Honemann]

On 6/3/2023 at 1:55 AM, J. J. said:

The member, in the scenario described in the footnote, does not know that the committee has been formed and the committee has not taken any action, yet the assembly may adopt charges.  That is considered to be treating the member fairly and proper due process, in RONR.  I do not believe that adopting a motion, that has not been carried out, and for which the member is not informed, treats a member any less fairly than entertaining (by a 2/3 vote) charges.

There is nothing at all in the footnote to 63:13 (or in anything that precedes it) indicating that the accused "does not know that the committee has been formed".  This is simply something which you have conjured up in your own mind to support an otherwise insupportable argument. 

On 6/3/2023 at 1:55 AM, J. J. said:

Further, 63:5 tells us that a member has a right that allegations be made by charges against him on "reasonable ground."  It notes that "If thus accused," he acquires several due process rights, including a right "to be treated fairly."  The due process rights are not triggered until the member is charged; there is no accused member until the charges are adopted.  Even if there is a committee which investigates and reports, the member may not face charges and never be the "accused."

Once again, you are reading something into what is said that simply isn't there. 63:5 reads as follows:

"63:5    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."

The first sentence tells us that charges must be "brought on reasonable ground." This means that the right of an accused to due process and to be treated fairly precedes the bringing of charges, since reasonable grounds for bringing them must first be established. The fact that the second sentence says that the accused is entitled to due process after charges have been brought does not mean that he is not entitled to due process before they have been brought. In fact, that footnote to 63:13 which you frequently cite specifically refers to providing due process to the accused prior to the bringing of charges.

.

[J. J.]

On 6/3/2023 at 8:06 AM, Dan Honemann said:

There is nothing at all in the footnote to 63:13 (or in anything that precedes it) indicating that the accused "does not know that the committee has been formed".  This is simply something which you have conjured up in your own mind to support an otherwise insupportable argument. 

Once again, you are reading something into what is said that simply isn't there. 63:5 reads as follows:

"63:5    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."

The first sentence tells us that charges must be "brought on reasonable ground." This means that the right of an accused to due process and to be treated fairly precedes the bringing of charges, since reasonable grounds for bringing them must first be established. The fact that the second sentence says that the accused is entitled to due process after charges have been brought does not mean that he is not entitled to due process before they have been brought. In fact, that footnote to 63:13 which you frequently cite specifically refers to providing due process to the accused prior to the bringing of charges.

.

No, there is nothing in the footnote, or the process, that even hints that the subject member knows that a committee to investigate him has been formed.  There simply is no notice requirement expressed, or implied, in the situation described in the footnote.

A "ground" for charging someone is not if a committee has been appointed or not; it is the substance of the charge.  The reasonableness of the charge is determined solely by the assembly, as indicated at 63:13 fn 8.  The assembly may chose to adopt charges in the face of a recommendation against charges or in the absence of a committee report.

I look at this from the standpoint of a potential defendant.  How would my right to be "treated fairly" be protected by the adoption of a motion to appoint a committee, where I may not have knowledge that the motion is adopted and where the committee never meets?  Can you explain how? 

[Dan Honemann]

On 6/3/2023 at 8:44 AM, J. J. said:

No, there is nothing in the footnote, or the process, that even hints that the subject member knows that a committee to investigate him has been formed.  There simply is no notice requirement expressed, or implied, in the situation described in the footnote.

A "ground" for charging someone is not if a committee has been appointed or not; it is the substance of the charge.  The reasonableness of the charge is determined solely by the assembly, as indicated at 63:13 fn 8.  The assembly may chose to adopt charges in the face of a recommendation against charges or in the absence of a committee report.

I look at this from the standpoint of a potential defendant.  How would my right to be "treated fairly" be protected by the adoption of a motion to appoint a committee, where I may not have knowledge that the motion is adopted and where the committee never meets?  Can you explain how? 

Well, it has become rather clear that we are simply repeating ourselves, and that this thread has become so lengthy and tedious that others are discouraged from participating. If you wish to start another, please feel free to do so, but this one should now be closed.