Letter of charges during disipline

[Guest rockbust@gmail.com]

Our bylaws require the board to send a copy of the letter of charges filed by a member against a fellow member when the board votes in exectutive session to have a hearing. In a recent situation a copy of the complaint was sent to a member notifing them charges were filed against them. It seems that person has now sent this letter to many other club members in an effort to rally some sort of support. Does sharing this complaint breach confidentiality? 

[Rob Elsman]

Do the organization's bylaws specifically authorize the executive board to handle "complaints" and "charges"?

[J. J.]

On 3/18/2024 at 7:56 PM, Guest rockbust@gmail.com said:

Our bylaws require the board to send a copy of the letter of charges filed by a member against a fellow member when the board votes in exectutive session to have a hearing. In a recent situation a copy of the complaint was sent to a member notifing them charges were filed against them. It seems that person has now sent this letter to many other club members in an effort to rally some sort of support. Does sharing this complaint breach confidentiality? 

IMO, it does not violate executive session, because this letter was sent outside of the meeting.

If this is some violation, separate charges would have to be filed for that. 

[rockbust]

On 3/18/2024 at 8:53 PM, Rob Elsman said:

Do the organization's bylaws specifically authorize the executive board to handle "complaints" and "charges"?

Yes the bylaws do authorize the board. 

[rockbust]

On 3/18/2024 at 9:12 PM, J. J. said:

IMO, it does not violate executive session, because this letter was sent outside of the meeting.

If this is some violation, separate charges would have to be filed for that. 

Hmm. It seems there would be some duty of secrecy with the complaint letter?  Would that extend to the board also. Is everyone free to discuss these charges and share this letter with anyone outside of what is "discussed" in ex session?   It seems that since the letter is forwarded ONLY to the member of the alleged misconduct and it has arrisen out of exectuve session they would be duty bound to maintain its secrecy?

Our bylaws procedure is this. member files complaint to secretary. Board meets in ex session and decides if any actions alleged in the complaint would, if proven, constitute conduct, which is prejudicial to the best interests of the Club. If yes, Secretary forwards complaint and informs them they have 30 days to request a hearing. Hearing is also held in ex session. 

[Gary Novosielski]

It seems to me that the right of confidentiality exists to protect to the recipient of the letter.  If the member wishes to reveal the charges against himself, I don't see where the board would have any valid complaint.  The fact that the letter "arose out of" executive session is not persuasive to me.  By sending a letter, the board has effectively decided to make the facts in it available outside the meeting.  They can't very well keep the charges secret from the person being charged, so although the proceedings of the meeting are secret, the contents of the letter they decided to send are not, and the recipient is not bound by the rules of a meeting he did not attend.

[J. J.]

On 3/19/2024 at 4:39 PM, rockbust said:

Hmm. It seems there would be some duty of secrecy with the complaint letter?  Would that extend to the board also. Is everyone free to discuss these charges and share this letter with anyone outside of what is "discussed" in ex session?   It seems that since the letter is forwarded ONLY to the member of the alleged misconduct and it has arrisen out of exectuve session they would be duty bound to maintain its secrecy?

Our bylaws procedure is this. member files complaint to secretary. Board meets in ex session and decides if any actions alleged in the complaint would, if proven, constitute conduct, which is prejudicial to the best interests of the Club. If yes, Secretary forwards complaint and informs them they have 30 days to request a hearing. Hearing is also held in ex session. 

The meeting is covered under executive session, because it is a meeting. An executive session cannot extend to the nail box, letter carrier or mail slot outside of a meeting.

The society may consider additional charges for releasing the letter, but not, strictly, a violation of an executive session. 

[J. J.]

On 3/19/2024 at 5:58 PM, Gary Novosielski said:

It seems to me that the right of confidentiality exists to protect to the recipient of the letter.  If the member wishes to reveal the charges against himself, I don't see where the board would have any valid complaint.  The fact that the letter "arose out of" executive session is not persuasive to me.  By sending a letter, the board has effectively decided to make the facts in it available outside the meeting.  They can't very well keep the charges secret from the person being charged, so although the proceedings of the meeting are secret, the contents of the letter they decided to send are not, and the recipient is not bound by the rules of a meeting he did not attend.

While I agree, there could be other grounds to charging the person who released the letter.

[Richard Brown]

I agree with Mr. Novosielski and with JJ. Based on what we have been told so far, I do not see any breach of confidentiality by the member in question sharing the contents of the letter and information about the charge or charges against him. 

[Gary Novosielski]

I wonder if the letter included any instructions directing the defendant that the charges must be kept secret, and some plausible explanation why.

[rockbust]

It is my understanding that all matters involving the disipline are exectutive session even if not held in that session. the charges, the investigation and the trial even including after the trial where the accused can not say what charges were brought against him or her. It seem illogical for someone to file charges on another that may contain extreemly sensitive matters only to have it spread through the membership by the accused. 

I also found this discussion just now. https://robertsrules.forumflash.com/topic/35255-confidentiality-of-chargesdisciplinary-action/   Are we saying before trial is acceptable to say what they are being disciplined for but after trial they can not?  Why would the investigation have to take place in secret but then charges not? why can the accused share this information but others can not? 

[Rob Elsman]

The only persons who are duty-bound not to disclose the proceedings in executive session are the members of the body (in this case, the board) and any necessary staff who were present.  As I understand the facts, the accused is neither a member of the board nor a member of the board's necessary staff, so the obligation not to disclose does not apply to him.  Whatever expectation the accused might have had that his good name would be protected seems to have been waived by the accused himself when he voluntarily distributed copies of the letter to other members of the organization.

[J. J.]

On 3/19/2024 at 7:39 PM, rockbust said:

It is my understanding that all matters involving the disipline are exectutive session even if not held in that session. the charges, the investigation and the trial even including after the trial where the accused can not say what charges were brought against him or her. It seem illogical for someone to file charges on another that may contain extreemly sensitive matters only to have it spread through the membership by the accused. 

I also found this discussion just now. https://robertsrules.forumflash.com/topic/35255-confidentiality-of-chargesdisciplinary-action/   Are we saying before trial is acceptable to say what they are being disciplined for but after trial they can not?  Why would the investigation have to take place in secret but then charges not? why can the accused share this information but others can not? 

There can be no execution session outside of the session of the assembly.  As a consequence, no one can be charged with violating executive session for disclosing a letter sent out in regard to disciplinary action.  Nothing in that discussion says anything differently.

That said, IMO, the assembly might determine that circulating the letter is conduct which would "disturb its well-being," and be grounds for a new charge (63:24). 

Note that even if the accused did actually violate executive session, i.e. disclosed something that happened during the trial that was in executive session, a separate process would be needed to investigate and charge the member. 

 

[Joshua Katz]

On 3/19/2024 at 9:18 PM, J. J. said:

There can be no execution session outside of the session of the assembly. 

In my copy of RONR, this is not among the penalties a society may impose.

[J. J.]

On 3/20/2024 at 9:39 AM, Joshua Katz said:

In my copy of RONR, this is not among the penalties a society may impose.

Executive session.  LOL. 

[Gary Novosielski]

On 3/20/2024 at 12:18 AM, J. J. said:

There can be no execution session outside of the session of the assembly. 

On the contrary, executions should normally be conducted outside, if only to facilitate clean-up.

[rockbust]

Rights of the Society and the Accused
63:2 A society has the right to investigate the character of its
members and officers as may be necessary to the enforcement
of its own standards. But neither the society nor any member
has the right to make public any information obtained through
such investigation; if it becomes common knowledge within the
society, it may not be revealed to any persons outside the
society. Consequently, a trial must always be held in executive
session, as must the introduction and consideration of all
resolutions leading up to the trial.
63:3 If (after trial) a member is expelled or an officer is removed
from office, the society has the right to disclose that fact—
circulating it only to the extent required for the protection of the
society or, possibly, of other organizations. Neither the society
nor any of its members has the right to make public the charge
of which an officer or member has been found guilty, or to
reveal any other details connected with the case. To make any
of the facts public may constitute libel. A trial by the society
cannot legally establish the guilt of the accused, as understood
in a court of law; it can only establish his guilt as affecting the
society’s judgment of his fitness for membership or office.

 

I have highlighted a few phrases from Robert's rules that is leading me to believe all information pertinent to the case is confidential and secret even outside of the actual executive session meeting or meetings.

1. The society can investigate by way of committee and all is confidential. The investigation is held outside of executive session yet Robert's rules says it is confidential. And not to be shared. So certainly they are saying things outside of executive session are confidential.

2. Not only is the trial confidential and considered executive session but also introductions considerations and resolutions leading up to the trial. As an important note our bylaws allow for the board or a committee of the board to act as an investigative committee and to decide if we are going to pursue charges by way of resolutions. These resolutions along with the actual complaint are required to be sent to the defendant and our bylaws. It is my belief that Robert's rules consider these confidential as they state in the second highlighted section. 

3. Robert's rules states that even after the trial no member including the accused can disclose the charges that were filed upon him. Why would it not be allowed after the trial but be allowed before the trial. This seems to be very conflicting.

 

[J. J.]

The answer is still the same.  The assembly must be in session to have an executive session.  The committee can meet in executive session as well. 

Go back and re-read my answers. 

[rockbust]

On 3/20/2024 at 3:14 PM, J. J. said:

The answer is still the same.  The assembly must be in session to have an executive session.  The committee can meet in executive session as well. 

Go back and re-read my answers. 

And are you saying the resolution that came out of executive session along with a copy of the complaint are not confidential? It seems Robert's rules says otherwise

 

[Gary Novosielski]

I don't necessarily agree that that language applies to the accused.  And RONR does not say "including the accused"; that is your assumption, and I think if it were true, it would probably have said so.  I assert that those paragraphs on secrecy can be read as not applying to the accused, without encountering any contradiction.  The secrecy is described as protecting the accused from defamation, and the society from being found liable for it.  The accused cannot be guilty of defaming himself, however.

In particular, I wonder how the society would be able to enforce such a requirement, especially after imposing expulsion as a penalty.  I think there is something wrong with telling someone, "We're secretly accusing you of aggravated mopery with intent to gawk, and you can't tell anyone, including your lawyer."

<see what I did there?>

Edited March 20, 2024 at 07:30 PM by Gary Novosielski

[rockbust]

On 3/20/2024 at 3:29 PM, Gary Novosielski said:

I don't necessarily agree that that language applies to the accused.  And RONR does not say "including the accused"; that is your assumption, and I think if it were true, it would probably have said so.  I assert that those paragraphs on secrecy can be read as not applying to the accused, without encountering any contradiction.  The secrecy is described as protecting the accused from defamation, and the society from being found liable for it.  The accused cannot be guilty of defaming himself, however.

In particular, I wonder how the society would be able to enforce such a requirement, especially after imposing expulsion as a penalty.  I think there is something wrong with telling someone, "We're secretly accusing you of aggravated mopery with intent to gawk, and you can't tell anyone, including your lawyer."

<see what I did there?>

Thank you so much for all the response. 

One could argue that by saying "members" they mean members else they would have excluded the accused?

[J. J.]

On 3/20/2024 at 3:24 PM, rockbust said:

And are you saying the resolution that came out of executive session along with a copy of the complaint are not confidential? It seems Robert's rules says otherwise

 

I am saying that it is not in executive session.

[Gary Novosielski]

On 3/20/2024 at 3:53 PM, rockbust said:

Thank you so much for all the response. 

One could argue that by saying "members" they mean members else they would have excluded the accused?

I suppose they might mean members.  But I think it's unenforceable in the case of the accused.

[J. J.]

On 3/20/2024 at 5:05 PM, Gary Novosielski said:

I suppose they might mean members.  But I think it's unenforceable in the case of the accused.

I disagree.  A member can be punished for his actions, if it is felt that the actions "disturbs the well-being" of the society.  However, that will involve forming an investigating committee that may recommend charges, a new set of charges.  The member could be acquitted on the first set and found guilty on the second. 

[Gary Novosielski]

On 3/20/2024 at 8:20 PM, J. J. said:

I disagree.  A member can be punished for his actions, if it is felt that the actions "disturbs the well-being" of the society.  However, that will involve forming an investigating committee that may recommend charges, a new set of charges.  The member could be acquitted on the first set and found guilty on the second. 

If the member then reveals that charge, it could be turtles all the way down.