Motion of Censure

[Michael Mouritsen]

In previous discussions of censure on this forum, there seems to be a consensus that members of an organization can censure anyone, including non-members, inasmuch as censure (unless accompanied by other penalties) is just the opinion of the body. I wonder if there might, however, be exceptions. A client-organization recently held its AGM, prior to which a member submitted a resolution censuring the board chair plus two senior (paid) employees of the organization. The bylaws of the organization give exclusive authority to the executive board to create employee positions, hire staff to fill them, evaluate them, discipline them, and terminate them. The bylaws also specify that such staff are accountable to the board. Robert is the parliamentary authority.

The resolutions committee refused to accept the resolution under a clause in their terms of reference that prohibits resolutions that promote 'personal grievances', which this was deemed to be (based on the mover's rationale for censure). I was retained as parliamentarian just days prior to the AGM, so had no involvement in the resolutions process and was not asked for an opinion on it. There is an appeal process for those whose resolutions are refused, but as it turns out, the member submitting the resolution did not attend the AGM, so no appeal was made from the floor and the resolution was not considered.

Whether or not the resolutions committee was correct in its refusal on the grounds of 'personal grievance', is there not a (stronger) argument that a censure motion cannot be moved against staff who report to, and are subject to evaluation and discipline by, the board? If the bylaws assign this responsibility to the board, is it not out of order for the AGM to usurp a function that the AGM itself, in adopting the bylaws, has decided belongs to the board? If members disapprove of the actions of employees, the AGM can censure the board or the board chair to express their disappointment, but can they censure the actual employees?

[Richard Brown]

You have posted some interesting questions.

The reasons you cite for not considering or not adopting the motions of censure might be good reasons and arguments for voting no on the actual motions of censure themselves, but I do not believe they constitute a legal (or I should say a parliamentary) reason for prohibiting them. I don’t believe anything in RONR would cause any of them to be out of order.

Interpreting the organization’s bylaws is, of course, something that only the organization itself can do, but I do not personally see that the motions of censure that you described violate the bylaws.

Edited June 24, 2024 at 06:31 PM by Richard Brown
Typographical correction

[Atul Kapur]

On 6/24/2024 at 12:44 PM, Michael Mouritsen said:

If the bylaws assign this responsibility to the board, is it not out of order for the AGM to usurp a function that the AGM itself, in adopting the bylaws, has decided belongs to the board?

It's not clear to me that the bylaws intended this to be the exclusive responsibility of the board and that the organization has removed its authority to instruct the board or censure an employee.

Other rules that may apply, such as corporate law, may say differently. 

Edited June 24, 2024 at 09:15 PM by Atul Kapur
I misread that the OP specified exclusive authority OP

[Josh Martin]

On 6/24/2024 at 11:44 AM, Michael Mouritsen said:

In previous discussions of censure on this forum, there seems to be a consensus that members of an organization can censure anyone, including non-members, inasmuch as censure (unless accompanied by other penalties) is just the opinion of the body.

Correct.

On 6/24/2024 at 11:44 AM, Michael Mouritsen said:

I wonder if there might, however, be exceptions.

There are no exceptions so far as RONR is concerned.

It may may well be that an organization's own rules or applicable law provide exceptions, but RONR does not.

On 6/24/2024 at 11:44 AM, Michael Mouritsen said:

Whether or not the resolutions committee was correct in its refusal on the grounds of 'personal grievance', is there not a (stronger) argument that a censure motion cannot be moved against staff who report to, and are subject to evaluation and discipline by, the board? If the bylaws assign this responsibility to the board, is it not out of order for the AGM to usurp a function that the AGM itself, in adopting the bylaws, has decided belongs to the board? If members disapprove of the actions of employees, the AGM can censure the board or the board chair to express their disappointment, but can they censure the actual employees?

I do not think the fact that the staff "report to, and are subject to evaluation and discipline by, the board," in and of itself, prevents the adoption of a motion to censure, as it simply expresses the membership's opinion.

The fact that the bylaws give the board exclusive authority to the board "to create employee positions, hire staff to fill them, evaluate them, discipline them, and terminate them" might give something of an argument in this matter. It could be argued that a motion to censure falls under "evaluating" the staff person. I would need to carefully review the exact language of the bylaws to give an informed opinion on this subject.

It may also be advisable to consult an attorney in this matter for any questions of applicable law.

On 6/24/2024 at 2:50 PM, Atul Kapur said:

It's not clear to me that the bylaws intended this to be the exclusive responsibility of the board and that the organization has removed its authority to instruct the board or censure an employee.

But the OP does in fact state that "The bylaws of the organization give exclusive authority to the executive board to create employee positions, hire staff to fill them, evaluate them, discipline them, and terminate them. The bylaws also specify that such staff are accountable to the board."

Of course, we have not seen the exact language of the bylaws that leads the OP to reach this opinion.

Edited June 24, 2024 at 08:26 PM by Josh Martin

[J. J.]

On 6/24/2024 at 4:24 PM, Josh Martin said:

The fact that the bylaws give the board exclusive authority to the board "to create employee positions, hire staff to fill them, evaluate them, discipline them, and terminate them" might give something of an argument in this matter. It could be argued that a motion to censure falls under "evaluating" the staff person. I would need to carefully review the exact language of the bylaws to give an informed opinion on this subject.

It may also be advisable to consult an attorney in this matter for any questions of applicable law.

So, would a motion to commend the employees also be out of order if the language was the same?

I regard a (non-penalty) motion to censure as doing nothing more that expressing an opinion. 

[Atul Kapur]

On 6/24/2024 at 4:24 PM, Josh Martin said:

But the OP does in fact state that "The bylaws of the organization give exclusive authority to the executive board to create employee positions, hire staff to fill them, evaluate them, discipline them, and terminate them. The bylaws also specify that such staff are accountable to the board."

Of course, we have not seen the exact language of the bylaws that leads the OP to reach this opinion.

Thanks for the correction, Josh. I have edited my response above.

I have no reason to doubt @Michael Mouritsen's description of the bylaws, but I agree that whether expressing a non-disciplinary censure conflicts with the board's authority to evaluate is a judgement call that's up to the organization to decide. 

[Josh Martin]

On 6/24/2024 at 4:04 PM, J. J. said:

So, would a motion to commend the employees also be out of order if the language was the same?

To the extent that the bylaws language granting the board exclusive authority to "evaluate" employees would preclude a motion to censure an employee, yes, I think it would likewise apply to a motion to commend.

I'm not entirely certain I am myself persuaded by this argument, but if it is correct, I think it would be applicable in both cases.

On 6/24/2024 at 4:04 PM, J. J. said:

I regard a (non-penalty) motion to censure as doing nothing more that expressing an opinion. 

I agree completely. And that is why I do not think the fact that the bylaws grant the board exclusive authority to discipline officers has any bearing on this question.

But I think a case could be made that a censure (or a commendation) might conflict with the board's authority to "evaluate" employees.

[Richard Brown]

On 6/24/2024 at 5:39 PM, Josh Martin said:

But I think a case could be made that a censure (or a commendation) might conflict with the board's authority to "evaluate" employees

You might try to make the case, but I don’t think I will be buying it! 😊

[Gary Novosielski]

I think there's a difference between "evaluating" an employee and evaluating a particular action of an employee.

Those who disagree should consider that this is analogous to the distinction drawn in 24:11 relating to Appeal:

 

Quote

 

The question is not on “sustaining the chair,” because the decision, not the presiding officer, is in question.

 

 

[J. J.]

On 6/24/2024 at 6:39 PM, Josh Martin said:

But I think a case could be made that a censure (or a commendation) might conflict with the board's authority to "evaluate" employees.

I agree with Mr. Brown on this.  The assembly is free to opine, but such an opinion is not an evaluation.  A censure would not result in any action against the employee and a commendation would not prevent the board from disciplining, or even firing, the employee. 

[Michael Mouritsen]

I'm grateful for the many helpful comments. I wonder, though, if we are making too much of a distinction between a 'disciplinary' motion of censure and a censure motion that merely expresses an 'opinion'. I can see that a member of an organization might appreciate the distinction, since the organization can enforce discipline against its own members by imposing penalties; if there are no penalties, then censure is an opinion that does not require the member to do, or refrain from doing, anything (except, presumably, to take note of the fact that his or her fellow members disapprove of something he or she has done). For non-members, who are not subject to the membership disciplinary procedures under Robert, being the target of a censure motion at the AGM probably looks a lot like mere discipline. Sure, it's only the opinion of the membership, and they can't impose any other penalties, but a non-member who is an employee of the organization likely views that 'opinion' as punishment. In fact, even with members, surely a censure motion without additional penalties is a form of discipline; it just doesn't involve 'formal disciplinary procedures', as noted in RONR (12th ed.) 61:2n1. In other words, it doesn't mean it isn't discipline, it just doesn't involve the formal procedures outlined in Chapter XX.

Although Robert doesn't actually define censure (but does call it a 'punishment' in 61:2), there is no shortage of definitions in other authorities. Lochrie calls it a 'rebuke'; Demeter, Riddick and the Standard Code describe it as a 'reprimand' and/or a 'warning'. (And, of course, it is always the actions that are the target of censure, not the individuals themselves.) For employees, these are terms that are actually found in the disciplinary lexicon of many employers.  At least in a workplace, an employee generally has the opportunity to speak up and respond to a reprimand, rebuke or warning, an opportunity that would not exist in their organization's AGM.

I do see a censure motion directed at employees to be an attempt at both evaluation and discipline, and since the bylaws in this particular organization assign such matters exclusively to the executive board, I believe a motion to censure employees would be out of order. I would rely on RONR 39:5: 'Motions that conflict with the corporate charter, constitution, or bylaws of a society, or with procedural rules prescribed by national, state, or local laws, are not in order . . .'.  Depending on the circumstances, a censure motion against employees could also violate 'procedural rules prescribed by national, state or local laws', e.g., employment or labour laws, or a collective agreement. If the members wish to express disapproval (or approval, as in a motion of commendation) of the actions of employees, the motion to censure or commend should be directed at the body to whom the employees are accountable, i.e., the executive board.

On the more general question of whether Robert imposes any limits at all on a motion of censure, it seems to me that there are limits. A motion to censure is a main motion, and we know that some main motions are prohibited because they are dilatory or improper. Aside from 39:5 (quoted in the preceding paragraph), see 39:3: 'Any main or other motion that is frivolous or absurd or that contains no rational proposition is dilatory and cannot be introduced' [emphasis added]. Or 39:7: 'No motion can be introduced that is outside the object of the society as defined in the corporate charter, constitution, or bylaws (see 56:18), unless by a two-thirds vote the assembly agrees to its consideration'.

Thanks again for the comments so far; look forward to any additional observations.

 

[J. J.]

On 6/25/2024 at 3:43 PM, Michael Mouritsen said:

I do see a censure motion directed at employees to be an attempt at both evaluation and discipline, and since the bylaws in this particular organization assign such matters exclusively to the executive board, I believe a motion to censure employees would be out of order. I would rely on RONR 39:5: 'Motions that conflict with the corporate charter, constitution, or bylaws of a society, or with procedural rules prescribed by national, state, or local laws, are not in order . . .'.  Depending on the circumstances, a censure motion against employees could also violate 'procedural rules prescribed by national, state or local laws', e.g., employment or labour laws, or a collective agreement. If the members wish to express disapproval (or approval, as in a motion of commendation) of the actions of employees, the motion to censure or commend should be directed at the body to whom the employees are accountable, i.e., the executive board.

I do not see it as either.  It is the expression of a (negative) opinion, nothing more. 

[Richard Brown]

On 6/25/2024 at 3:53 PM, J. J. said:

I do not see it as either.  It is the expression of a (negative) opinion, nothing more. 

I see it the same way that JJ does. 

[Dan Honemann]

On 6/25/2024 at 11:34 PM, Richard Brown said:

I see it the same way that JJ does. 

Well, I suppose I may as well chime in and say that I agree with Mr. Mouritsen, and perhaps others, that a motion to censure an employee made at a meeting of the full membership may well infringe upon the exclusive authority to evaluate employees that the bylaws vest in the board.

We apparently have the exact language of the bylaws conferring this exclusive authority upon the board, but what we do not have is the exact wording of the resolution censuring two employees which was submitted to the resolutions committee.  I suspect the exact wording of this resolution may help a great deal in making this determination.

 

[J. J.]

On 6/26/2024 at 8:22 AM, Dan Honemann said:

Well, I suppose I may as well chime in and say that I agree with Mr. Mouritsen, and perhaps others, that a motion to censure an employee made at a meeting of the full membership may well infringe upon the exclusive authority to evaluate employees that the bylaws vest in the board.

We apparently have the exact language of the bylaws conferring this exclusive authority upon the board, but what we do not have is the exact wording of the resolution censuring two employees which was submitted to the resolutions committee.  I suspect the exact wording of this resolution may help a great deal in making this determination.

 

I disagree that a motion to censure (or commend) would be an example of the "authority to evaluate employees."  Technically, at least as has been posited, the persons being censured (or commended) are not employees of the assembly.  Only if there was something prohibiting the assembly from expressing its opinion would it be out of order.

[Dan Honemann]

On 6/26/2024 at 9:03 AM, J. J. said:

I disagree that a motion to censure (or commend) would be an example of the "authority to evaluate employees."  Technically, at least as has been posited, the persons being censured (or commended) are not employees of the assembly.  Only if there was something prohibiting the assembly from expressing its opinion would it be out of order.

You seem to be saying that you understand the quoted bylaw provision to be referring only to employees of the group of people who are meeting, and not to employees of the organization itself.  If so, I most strongly disagree.  

[Weldon Merritt]

On 6/26/2024 at 8:29 AM, Dan Honemann said:

You seem to be saying that you understand the quoted bylaw provision to be referring only to employees of the group of people who are meeting, and not to employees of the organization itself.  If so, I most strongly disagree.  

So do I. I waiver back and forth on whether the resolutions would have violated the board's exclusive authority, but I lean toward saying it would not. However, I agree with Mr. Honemann that having the exact wording of teh resolution would help with that determination.

[J. J.]

On 6/26/2024 at 9:29 AM, Dan Honemann said:

You seem to be saying that you understand the quoted bylaw provision to be referring only to employees of the group of people who are meeting, and not to employees of the organization itself.  If so, I most strongly disagree.  

I would say that the group meeting is not necessarily the employees of the assembly; they are not necessarily able to evaluate as an employer would.  The bylaw language that would prevent the assembly from expressing an opinion would have to be very specific.

 

[Michael Mouritsen]

Again, many thanks for all the comments.

As requested, I've copied the text of the resolution below, edited to remove any identifying information. Some additional context might be helpful. At the previous year's AGM, the members adopted a resolution that called on the board to schedule a 'light' AGM the next year (virtual, half-day), following by a 'full' AGM the following year (in-person, full day), and then to alternate these formats going forward. The board interpreted this to mean that no resolutions would be sought from the membership for the 'light' AGM. On the direction of the board, the initial notice for the 2024 AGM was sent by staff (the two employees identified in the censure motion) and indicated that no resolutions were being sought from members this year but that they could be submitted for the 2025 meeting. It was subsequently discovered that this interpretation was a violation of the statue and their bylaws, the board assumed full responsibility for the error, and a revised notice was issued correcting the error and inviting resolutions (all within the prescribed timelines and notice period specified in the bylaws).

This 'correction' apparently wasn't good enough for the mover of the censure resolution, who submitted the following motion. The Code of Conduct, by the way, is a policy document adopted by the executive board and 'ratified' a number of years ago by the AGM and does apply to both members and employees. It sets out expectations with regard to decorum, interpersonal relations, harassment, discrimination, etc.

Whereas, The Code of Conduct requires that the personal conduct of all members and employees shall be above reproach in regard to any activity that may reflect upon [the organization]; and

Whereas, The original notice of the 2024 AGM sent to the membership stated that no member resolutions would be tabled or discussed at the 2024 AGM; and

Whereas, Our bylaws and governing statute state that it is the right of members to propose and consider resolutions at every AGM;

Whereas, In refusing to allow member resolutions to be submitted, discussed and voted on at the 2024 AGM, the senior leadership contravened the bylaws, statute and Code of Conduct;

Resolved, That [Board Chair by title and name], [Employee A title and name], and [Employee B title and name] be censured by the membership for failing to adhere to the Code of Conduct and for violating the bylaws and our governing statute and for displaying a cavalier disregard for members’ rights.

 

[Gary Novosielski]

Are we to understand that the "notice" that no member resolutions would be in order went unchallenged at the meeting itself?  Nobody attempted to "table" (in the Canadian meaning) a motion, none were ruled out of order, and most importantly, there was no Appeal raised?

If that's true, then I would say that it is too late to introduce such a motion.

Quote

24:2 Members have no right to criticize a ruling of the chair unless they appeal from his decision.

 

[Richard Brown]

On 6/26/2024 at 9:17 AM, J. J. said:

I would say that the group meeting is not necessarily the employees of the assembly; they are not necessarily able to evaluate as an employer would.  The bylaw language that would prevent the assembly from expressing an opinion would have to be very specific.

 

I agree with this analysis. I still see nothing to prohibit the consideration of a resolution or motion of censure of the employees at the annual meeting.

[Dan Honemann]

On 6/26/2024 at 12:40 PM, Michael Mouritsen said:

Resolved, That [Board Chair by title and name], [Employee A title and name], and [Employee B title and name] be censured by the membership for failing to adhere to the Code of Conduct and for violating the bylaws and our governing statute and for displaying a cavalier disregard for members’ rights.

 

This resolution has the membership of the organization asserting, as being factually true, that the employees named failed to adhere to the Code of Conduct, violated the bylaws and governing statute, and displayed a cavalier disregard for members’ rights.  In my opinion. this constitutes an evaluation (appraisal, assessment) of their conduct, and hence falls within the exclusive power of the board.  If I were presiding, I would rule this resolution out of order on this basis, although I hasten to note that an appeal from my ruling would not be out of order. 

[J. J.]

On 6/26/2024 at 2:22 PM, Dan Honemann said:

This resolution has the membership of the organization asserting, as being factually true, that the employees named failed to adhere to the Code of Conduct, violated the bylaws and governing statute, and displayed a cavalier disregard for members’ rights.  In my opinion. this constitutes an evaluation (appraisal, assessment) of their conduct, and hence falls within the exclusive power of the board.  If I were presiding, I would rule this resolution out of order on this basis, although I hasten to note that an appeal from my ruling would not be out of order. 

Though I am not a fan of this type of a motion to censure, it is in order.

The assembly cannot evaluate, if that exclusive function of the board; the assembly may only express an opinion.  They may say bad, or good, things about the employees, but they are only expressing an opinion, not "evaluating" an employee. 

[Weldon Merritt]

On 6/26/2024 at 3:13 PM, J. J. said:

The assembly cannot evaluate, if that exclusive function of the board; the assembly may only express an opinion.  They may say bad, or good, things about the employees, but they are only expressing an opinion, not "evaluating" an employee. 

I disagree. That seems to rely on ana overly narrow definition of "evaluate," such as some sort of formal record placed in the employee's record. But I don't believe that the usage in the bylaws is that narrow. At least not without some evidence that it is used as a term of art rather than according to it's normal definition. One of the Dictionary.com editions of "evaluate" is "to judge or determine the significance, worth, or quality of; assess." It seems to me that by adopting the resolution, the assembly would be "judg[ing] or determin[ing] the significance, worth, or quality of" the employees' work. 

[J. J.]

On 6/26/2024 at 5:33 PM, Weldon Merritt said:

I disagree. That seems to rely on ana overly narrow definition of "evaluate," such as some sort of formal record placed in the employee's record. But I don't believe that the usage in the bylaws is that narrow. At least not without some evidence that it is used as a term of art rather than according to it's normal definition. One of the Dictionary.com editions of "evaluate" is "to judge or determine the significance, worth, or quality of; assess." It seems to me that by adopting the resolution, the assembly would be "judg[ing] or determin[ing] the significance, worth, or quality of" the employees' work. 

That is where I disagree.  The assembly cannot "judge or determine the significance, worth, or quality of; assess," of an employee in this case.  The assembly, I think we all agree, cannot "judge" an employee in this case or "determine" anything.   They may say, "Well, if we could judge, this is what we would say," but that still is not a judgement.