Motion of Censure

[Dan Honemann]

On 6/27/2024 at 6:41 AM, J. J. said:

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. 

Of course, as a matter of fact, the membership's assembly can judge the quality of work that an employee has done and assess its value, or lack thereof.  Especially since, in this instance, they are all familiar with the work which was done.  The problem is that the bylaws give the board sole authority to do so, which is why I think the resolution which was proposed would not be in order.

[J. J.]

On 6/27/2024 at 7:53 AM, Dan Honemann said:

Of course, as a matter of fact, the membership's assembly can judge the quality of work that an employee has done and assess its value, or lack thereof.  Especially since, in this instance, they are all familiar with the work which was done.  The problem is that the bylaws give the board sole authority to do so, which is why I think the resolution which was proposed would not be in order.

I do not agree.  Expressing an opinion is not a judgement, as such.  If there was something else, e.g. that the censure (or commendation) be entered into their personnel file or a motion that the board fire the employee, that would cross the line. 

A client expressing a negative opinion of your abilities as an attorney would not, in my view, be a judgement.  A court or bar committee would be; I can very easily see situations where a client would opine in the negative and it would be clear to the court or bar committee that you acted completely properly. 

[Dan Honemann]

On 6/27/2024 at 8:44 AM, J. J. said:

I do not agree.  Expressing an opinion is not a judgement, as such.  If there was something else, e.g. that the censure (or commendation) be entered into their personnel file or a motion that the board fire the employee, that would cross the line. 

A client expressing a negative opinion of your abilities as an attorney would not, in my view, be a judgement.  A court or bar committee would be; I can very easily see situations where a client would opine in the negative and it would be clear to the court or bar committee that you acted completely properly. 

The fact that we disagree is of no moment. We aren't dealing with a rule in RONR. We are dealing with the proper interpretation and application of a bylaw provision which appears to be, in at least one respect, somewhat ambiguous.

[Josh Martin]

On 6/25/2024 at 2:43 PM, Michael Mouritsen said:

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'.

We aren't. They are distinct, as a parliamentary matter. There is no dispute that the language in the bylaws referring to the board's authority to discipline staff has no applicability to a motion expressing the membership's opinion on this matter.

I would note, as you correctly noted in the original post, that an organization is free to adopt a motion to censure someone who has no connection to the organization whatsoever, so I don't believe whether the membership has authority to impose actual discipline on the employee is relevant.

On 6/25/2024 at 2:43 PM, Michael Mouritsen said:

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.

Nonetheless, it isn't.

On 6/25/2024 at 2:43 PM, Michael Mouritsen said:

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.

I mean, members may well view an "opinion" in this matter as "punishment" as well. That doesn't mean they're correct.

On 6/25/2024 at 2:43 PM, Michael Mouritsen said:

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.

I disagree. A motion to censure, without formal disciplinary procedures, is not "discipline." It simply expresses the assembly's opinion, nothing more. The fact that an assembly has the authority to censure someone who has no connection to the organization, and therefore the assembly has no authority to impose discipline, further strengthens the fact that it is not discipline.

I must reiterate again that there are absolutely no limitations on who an assembly can censure within the text of RONR itself. To the extent any limitations in this matter exists, they would be found in your bylaws or applicable law.

It's certainly correct that a censure "feels like" discipline, which is frankly kind of the point. It's an attempt, essentially, to shame someone into changing their behavior.

On 6/25/2024 at 2:43 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 disagree wholeheartedly with respect to "discipline." I could see a case made with respect to "evaluation," although I do not find it terribly persuasive.

On 6/25/2024 at 2:43 PM, Michael Mouritsen said:

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.

That may well be, but such questions should be directed to an attorney.

On 6/25/2024 at 2:43 PM, Michael Mouritsen said:

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'.

I suppose I should have said RONR imposes no limitations on censure specifically. Certainly, a motion to censure is subject to the same limitations as any other motion.

I do not think either of these citations are applicable to this situation.

On 6/25/2024 at 3:53 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. 

What is an "evaluation" but an expression of an opinion concerning the employee's conduct?

 

[Richard Brown]

I concur completely with the statements immediately above by Josh Martin

[J. J.]

On 6/27/2024 at 10:16 AM, Josh Martin said:

What is an "evaluation" but an expression of an opinion concerning the employee's conduct?

 

I would call an "evaluation" something more than an opinion; it would be a binding judgement.  That is the distinction. 

Edited June 27, 2024 at 08:29 PM by J. J.

[Weldon Merritt]

On 6/27/2024 at 3:28 PM, J. J. said:

I would call an "evaluation" something more than an opinion; it would be a binding judgement.  That is the distinction. 

I still am not convinced, as I think you are using an overly narrow definition of "evaluate" with no reason to believe that the bylaws are using the same restrictive definition. However, I also believe that reasonable minds may differ on the interpretation, and an appeal of the chair's ruling either way certainly would be in order.

[Michael Mouritsen]

I appreciate all of the comments on this topic, particularly the supportive remarks of Messrs Honemann and Merritt on this particular case, and of course I agree that a ruling of the chair that the motion is out of order could be appealed. 

On 6/27/2024 at 10:16 AM, Josh Martin said:

I suppose I should have said RONR imposes no limitations on censure specifically. Certainly, a motion to censure is subject to the same limitations as any other motion.

On the more general question of limitations on the motion to censure in Robert (leaving aside what an organization's own rules might impose as in 39:5), surely the manual does offer significant limitations. To argue that there are absolutely no restrictions, and that the assembly can censure anyone, flies in the face of 39:3 (dilatory: 'frivolous or absurd or that contains no rational proposition') and 39:7 (improper: 'outside the object of the society'). The latter prohibition, it seems to me, impacts directly on who is eligible to be censured, other than members. To censure a non-member, one would have to establish that the actions to be censured relate to and are encompassed by the object of the organization. Depending on how narrowly the object is defined, that could be a high bar to achieve. 

[J. J.]

On 6/28/2024 at 11:25 AM, Michael Mouritsen said:

 

On the more general question of limitations on the motion to censure in Robert (leaving aside what an organization's own rules might impose as in 39:5), surely the manual does offer significant limitations. To argue that there are absolutely no restrictions, and that the assembly can censure anyone, flies in the face of 39:3 (dilatory: 'frivolous or absurd or that contains no rational proposition') and 39:7 (improper: 'outside the object of the society'). The latter prohibition, it seems to me, impacts directly on who is eligible to be censured, other than members. To censure a non-member, one would have to establish that the actions to be censured relate to and are encompassed by the object of the organization. Depending on how narrowly the object is defined, that could be a high bar to achieve. 

Why would expressing an opinion be considered dilatory or "serving no rational purpose?"

 

[Josh Martin]

On 6/28/2024 at 10:25 AM, Michael Mouritsen said:

On the more general question of limitations on the motion to censure in Robert (leaving aside what an organization's own rules might impose as in 39:5), surely the manual does offer significant limitations. To argue that there are absolutely no restrictions, and that the assembly can censure anyone, flies in the face of 39:3 (dilatory: 'frivolous or absurd or that contains no rational proposition') and 39:7 (improper: 'outside the object of the society').

Mr. Mouritsen, I thought my clarification was sufficient, but apparently not. As I have previously stated: "I suppose I should have said RONR imposes no limitations on censure specifically. Certainly, a motion to censure is subject to the same limitations as any other motion."

That is, you are indeed correct that a motion which is "frivolous or absurd or that contains no rational proposition" is out of order. A motion to censure which is "outside the object of the society" is not out of order per se, but a 2/3 vote is required for the introduction of such a motion. There is nothing special about the motion to censure in this regard. These rules are applicable to any motion.

I would note, however, that I do not think either of these rules is applicable to the factual situation you have presented here.

On 6/28/2024 at 10:25 AM, Michael Mouritsen said:

The latter prohibition, it seems to me, impacts directly on who is eligible to be censured, other than members. To censure a non-member, one would have to establish that the actions to be censured relate to and are encompassed by the object of the organization. Depending on how narrowly the object is defined, that could be a high bar to achieve. 

Yes, I think you raise a fair point that, depending on the object of the organization, it may well be that a motion to censure is "outside the object of the society."

Edited June 28, 2024 at 09:12 PM by Josh Martin