When is a trial necessary?

[rulesasker]

If the bylaws state that a board member may be removed by a vote of the members not under consideration, and list some reasons that would be "valid grounds," must a trial be held using the rules in chapter 63? Or can the board simply vote on a motion to remove them?

[Joshua Katz]

I'd want to see the language, particularly as to what it says about "valid grounds." As a general matter, the bylaws are not "silent" on this.

[rulesasker]

On 6/28/2023 at 10:47 AM, Joshua Katz said:

I'd want to see the language, particularly as to what it says about "valid grounds." As a general matter, the bylaws are not "silent" on this.

 

Quote

Any Board member may be removed from the Board by a majority vote of the Board members not under consideration. Absences from Board work or lack of wisdom and diligence in matters brought before the Board constitute valid grounds for consideration of removal from office.

[Joshua Katz]

Hmm. The first part is pretty clear. Then there's the second part, which I don't know what to do with. There's a general rule that we presume language is there for a reason, so the second part should mean something. And there's a rule that providing a list like this prohibit things not on the list, but I'm not sure that's applicable here. It seems like whether there must be "valid grounds" or not, and what constitutes them, is an ambiguity only your organization can resolve.

However, it does seem clear to me, from the language here, that the board may remove a board member from the board by a motion with somewhat special voting rules, and so no trial is needed.

[Atul Kapur]

On 6/28/2023 at 11:49 AM, rulesasker said:

Absences from Board work or lack of wisdom and diligence in matters brought before the Board constitute valid grounds for consideration of removal from office.

On 6/28/2023 at 12:01 PM, Joshua Katz said:

Then there's the second part, which I don't know what to do with.

The second part of the second part ("lack of wisdom and diligence") seems broad enough that you could do anything you want within it.

[Josh Martin]

On 6/28/2023 at 10:41 AM, rulesasker said:

If the bylaws state that a board member may be removed by a vote of the members not under consideration, and list some reasons that would be "valid grounds," must a trial be held using the rules in chapter 63? Or can the board simply vote on a motion to remove them?

Quote

Any Board member may be removed from the Board by a majority vote of the Board members not under consideration. Absences from Board work or lack of wisdom and diligence in matters brought before the Board constitute valid grounds for consideration of removal from office.

The second one, in my opinion. The organization's bylaws take precedence over RONR, and the organization's rules on this matter do not seem to require any particular process, simply stating "Any Board member may be removed from the Board by a majority vote of the Board members not under consideration."

On 6/28/2023 at 11:01 AM, Joshua Katz said:

Hmm. The first part is pretty clear. Then there's the second part, which I don't know what to do with. There's a general rule that we presume language is there for a reason, so the second part should mean something. And there's a rule that providing a list like this prohibit things not on the list, but I'm not sure that's applicable here. It seems like whether there must be "valid grounds" or not, and what constitutes them, is an ambiguity only your organization can resolve.

However, it does seem clear to me, from the language here, that the board may remove a board member from the board by a motion with somewhat special voting rules, and so no trial is needed.

It seems pretty clear to me the wording is so broad that a board member can ultimately be removed for any reason the board pleases. "Lack of wisdom and diligence in matters brought before the Board" is quite broad. In addition, the first part, "Absences from Board work," is broad as well. Often organizations will provide that members can be removed after a certain number of absences, but this rule simply provides for "Absences from Board work" generally, and surely most members will miss something eventually.

[J. J.]

I would want to know the specific term of office. 

[rulesasker]

On 6/29/2023 at 4:58 PM, J. J. said:

I would want to know the specific term of office. 

It just says 3 year terms with a specific day of the year they end. Nothing about removal except what I've already quoted.

[J. J.]

On 6/29/2023 at 6:03 PM, rulesasker said:

It just says 3 year terms with a specific day of the year they end. Nothing about removal except what I've already quoted.

I believe that a trial would be necessary, both due to the term of office, primarily, and because there would have to be a determination of what constitutes "Absences from Board work or lack of wisdom and diligence in matters brought before the Board."  Since an officer would be removed "by majority vote" after a trial, I do not find the language compelling for permitting removal by motion. 

[Atul Kapur]

I don't know why you feel that the specific inclusion of language in the bylaws is meaningless, which it is under your interpretation (it adds nothing to what is already in RONR).

They have added a mechanism in the bylaws. If they wanted to have that include a trial, we must presume (by the principles of interpretation) they would have added it.

[J. J.]

On 6/30/2023 at 1:18 AM, Atul Kapur said:

I don't know why you feel that the specific inclusion of language in the bylaws is meaningless, which it is under your interpretation (it adds nothing to what is already in RONR).

They have added a mechanism in the bylaws. If they wanted to have that include a trial, we must presume (by the principles of interpretation) they would have added it.

We would presume that if they had that term of office of "and until," a trial is required.  Guilt is determined by a "majority vote."  That is not an additional mechanism. 

[Josh Martin]

On 6/29/2023 at 5:24 PM, J. J. said:

I believe that a trial would be necessary, both due to the term of office, primarily, and because there would have to be a determination of what constitutes "Absences from Board work or lack of wisdom and diligence in matters brought before the Board."  Since an officer would be removed "by majority vote" after a trial, I do not find the language compelling for permitting removal by motion. 

I have always understood the rules in 62:16 to be applicable when the bylaws are silent on discipline.

In this instance, the bylaws are not silent. They provide that "Any Board member may be removed from the Board by a majority vote of the Board members not under consideration." The rule includes no provision requiring a trial.

I don't find the argument persuasive that "there would have to be a determination of what constitutes "Absences from Board work or lack of wisdom and diligence in matters brought before the Board" means that a trial is required. This determination could be made through debate on a motion to remove, and does not necessarily require a trial. 

[J. J.]

On 6/30/2023 at 7:11 AM, Josh Martin said:

I have always understood the rules in 62:16 to be applicable when the bylaws are silent on discipline.

In this instance, the bylaws are not silent. They provide that "Any Board member may be removed from the Board by a majority vote of the Board members not under consideration." The rule includes no provision requiring a trial.

I don't find the argument persuasive that "there would have to be a determination of what constitutes "Absences from Board work or lack of wisdom and diligence in matters brought before the Board" means that a trial is required. This determination could be made through debate on a motion to remove, and does not necessarily require a trial. 

I do not regard the need for a trial, with a fix termed, as being applicable only when the bylaws are silent.  I regard it as being binding unless the bylaws (or a special rule) "provide otherwise (62:16)."  Saying  a "majority vote" is not providing otherwise.

Debate itself cannot make a determination directly.  It may implicitly determine something, i.e. because the assembly removed someone it could be argued that this is cause threshold has been met.  Even then it would not necessary be established in debate.  They could remove the board member for the stated reason that they don't like him, for his views on an outside political, or his manner of dress.   This would have to be an explicit determination of "absences from Board work or lack of wisdom and diligence in matters brought before the Board."

[Atul Kapur]

On 6/30/2023 at 1:27 AM, J. J. said:

We would presume that if they had that term of office of "and until," a trial is required.

But they do not, so I'm not clear how you arrive at the same conclusion.

On 6/30/2023 at 1:27 AM, J. J. said:

Guilt is determined by a "majority vote."  That is not an additional mechanism. 

It is a replacement mechanism to the trial process in RONR. It is a very simple one, but it is a replacement, nonetheless.

On 6/30/2023 at 9:05 AM, J. J. said:

I regard it as being binding unless the bylaws (or a special rule) "provide otherwise (62:16)."  Saying  a "majority vote" is not providing otherwise.

This is where we disagree. 

[J. J.]

On 6/30/2023 at 9:34 AM, Atul Kapur said:

But they do not, so I'm not clear how you arrive at the same conclusion.

It is a replacement mechanism to the trial process in RONR. It is a very simple one, but it is a replacement, nonetheless.

This is where we disagree. 

The bylaws used a fixed term, which would require a trial. 

Saying "majority vote" is not a replacement for the method to getting a majority vote (which is the RONR standard as well).  Saying getting that vote "by motion" would show a different method, for example. 

 

[Atul Kapur]

On 6/30/2023 at 9:45 AM, J. J. said:

The bylaws used a fixed term, which would require a trial. 

Except that the bylaws have a different method.

As I've noted earlier, we have found precisely where we disagree. Previous experience tells me that neither of us will be swayed to the other's position so I won't argue further with you on this, although I'm sure others will be happy to participate.

[rulesasker]

Does it matter at all that the bylaws drafters likely did not intend or contemplate a trial?

[J. J.]

On 6/30/2023 at 10:12 AM, Atul Kapur said:

Except that the bylaws have a different method.

As I've noted earlier, we have found precisely where we disagree. Previous experience tells me that neither of us will be swayed to the other's position so I won't argue further with you on this, although I'm sure others will be happy to participate.

You keep on claiming that the bylaws express a "different method."  A "majority vote" is not a "method" (nor is it different for the majority vote required after a trial).  This appears to be a bylaw interpretation question then. 

 

[J. J.]

On 6/30/2023 at 10:14 AM, rulesasker said:

Does it matter at all that the bylaws drafters likely did not intend or contemplate a trial?

Yes, if you could demonstrate that. 

Likewise, if you could show that a trial conflicted with another part of the bylaws, that would change my opinion. 

Edited June 30, 2023 at 02:22 PM by J. J.

[Josh Martin]

On 6/30/2023 at 9:14 AM, rulesasker said:

Does it matter at all that the bylaws drafters likely did not intend or contemplate a trial?

Yes.

"Each society decides for itself the meaning of its bylaws. When the meaning is clear, however, the society, even by a unanimous vote, cannot change that meaning except by amending its bylaws. An ambiguity must exist before there is any occasion for interpretation. If a bylaw is ambiguous, it must be interpreted, if possible, in harmony with the other bylaws. The interpretation should be in accordance with the intention of the society at the time the bylaw was adopted, as far as this can be determined. Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question. The ambiguous or doubtful expression should be amended as soon as practicable." RONR (12th ed.) 56:68, emphasis added

[rulesasker]

On 6/30/2023 at 9:46 AM, Josh Martin said:

Yes.

"Each society decides for itself the meaning of its bylaws. When the meaning is clear, however, the society, even by a unanimous vote, cannot change that meaning except by amending its bylaws. An ambiguity must exist before there is any occasion for interpretation. If a bylaw is ambiguous, it must be interpreted, if possible, in harmony with the other bylaws. The interpretation should be in accordance with the intention of the society at the time the bylaw was adopted, as far as this can be determined. Again, intent plays no role unless the meaning is unclear or uncertain, but where an ambiguity exists, a majority vote is all that is required to decide the question. The ambiguous or doubtful expression should be amended as soon as practicable." RONR (12th ed.) 56:68, emphasis added

Ok, that's very helpful. I'm sure I could get that as we still have some of those people. 

[Gary Novosielski]

On 6/30/2023 at 9:05 AM, J. J. said:

Saying  a "majority vote" is not providing otherwise.

If a RONR rule says a trial is required to remove someone, and a bylaws rule says that a majority vote is sufficient to remove someone, that is a rule that clearly provides otherwise.  Either that, or the word otherwise does not mean what we thought it meant.

[J. J.]

On 6/30/2023 at 10:57 AM, Gary Novosielski said:

If a RONR rule says a trial is required to remove someone, and a bylaws rule says that a majority vote is sufficient to remove someone, that is a rule that clearly provides otherwise.  Either that, or the word otherwise does not mean what we thought it meant.

No, it would not.  The vote needed is different that process needed to get that vote.  Process is different than vote a threshold.  Now, if the bylaw said that an officer may be removed "by motion," that would describe a different process.  Likewise, if the bylaws said that the officer could be removed by a vote of no confidence (and I have that in bylaws) a majority vote without a trial would be sufficient.

If there was something relating to the intent that would show that a trial was not necessary, that would establish an interpretation.

The words "majority vote" do not explain, one way or the other, the method of removing an officer.

[J. J.]

Let me ask you all this question. 

If it was determined that a trial is required, what is the vote needed to remove an officer?