Chapter 18
Disciplining and Removing Officers or Members
In This Chapter
Knowing when and how to remove someone from office
Using proper methods to charge and try members for offenses
Understanding how to expel disorderly members from meetings
People behave themselves most of the time, but sometimes members and officers alike get the urge to create problems or make a scene in meetings. However infrequent they may be, you need to know how to deal with problem situations when they occur.
And not all problems crop up in meetings. Even outside the meeting milieu, a member may conduct herself in a manner inconsistent with the standards your group requires of those who want to maintain an association with your organization. This chapter gives you information on how to deal with situations that shouldn’t occur but, unfortunately, do.
Dealing with a Dictator
Has your presiding officer donned the crown of King Kong? Does she refuse to allow your proper motion to come before the membership because of her obvious effort to maintain and protect her own personal agenda or faction? If so, she’s violating her duty to the assembly to maintain an impartial bearing in the chair.
Not to worry. You can exercise some options that may just cause her the utmost astonishment.
Putting a question from your place
Suppose that the presiding officer is blocking your motion by refusing to let it come before the membership for consideration. Your first line of defense in this sort of passive-aggressive attack on your rights is to raise a Point of Order (see Chapter 11) and to appeal any ruling that’s wrong or self-serving. If the chair refuses to entertain your Point of Order or your appeal after you’ve repeated it a couple times, you get to have some fun and put the question from your place.
Putting the question from your place means you can simply ignore the chair’s recalcitrance and announce to the members that the chair’s unwillingness to put the question on your appeal entitles you to place before them the motion you originally wanted to make. Go for it! The rules are on your side. By this time, King Kong has probably lost some serious brownie points and may be close to having her name changed to Gorilla B. Gone.
To put the question from your place, you need to know your political situation. You can’t get far if you aren’t confident that the majority is on your side. And if you are actually the problem and are just being a pill, challenging the presiding officer can’t help you.
Removing the presiding officer from the chair
If King Kong continues to abuse the rights of the members, you have another weapon in your arsenal. You can move to suspend the rules and remove her from the chair (for the current meeting or session) with a two-thirds vote. (For information on the incidental motion to suspend the rules, see Chapter 11.) When your gruesome gorilla is out of the way, elect a temporary chairman and contemplate the more permanent solution of busting the big ape down to a little monkey.
Removing an officer permanently
A good number of my consultations address situations in which a president decides that the membership exists to serve her personal agenda, and sorry is the poor soul who dares to suggest an alternative approach to anything.
Before you and your fellow members just give up and abandon your treasury to the control of King Kong and her minions, you may want to consider the alternative action: Remove the mighty monkey from office. Removing someone from office isn’t necessarily easy, but if your bylaws include a provision that the members can remove an officer, then you can do it without much ado as long as you get a two-thirds vote on the proposal. (You can actually accomplish the removal with a majority vote if you’ve given notice, or if you have the votes of a majority of the entire membership.) Removing an officer is just a particular use of the motion to rescind or amend something previously adopted (see Chapter 12). With this action, you are, in effect, amending your original election and electing someone else.
You may encounter a couple of stumbling blocks in your quest to make your meetings once again safe for democracy. If your bylaws say nothing about members removing officers, you can follow the procedure I outline in this section only if the bylaws provide that the officer’s term of office is “for [a certain length of time] or until a successor is elected and assumes office.”
If you see that terminology in the bylaws, the membership can remove your officer from office by adopting a motion to that effect. That motion requires a two-thirds vote without notice, or a majority vote if proper previous notice was given, or the affirmative vote of a majority of the entire membership.
If you don’t see that or in your bylaws but find an and in its place, then to bring down King Kong, you can remove her only for cause. Doing so involves charging the officer with neglect of duty or unfitness to continue in office and holding a trial. I cover the steps for this procedure in the section “Holding a trial,” later in this chapter.
The officer-removal process is the same even if you’re not particularly motivated by the desire to defeat a despot. You can attempt to remove an officer for any good reason (it has to be good if you expect to reach removal through a trial), such as when Ms. Meanswell gets elected but has attended only one meeting in the past year since her election. In fact, if your bylaws provide for removal, or if your term-of-office clause has that little or, then you can remove from office any officer at any time for any reason. Not that you’d want to, but it’s good to know you can!
Disciplining Members Who Shame Your Group’s Name
Your bylaws may include sections on discipline and list offenses and remedies along with a procedure for dealing with them. But even if your bylaws don’t address these issues specifically, you’re not obligated to allow a person to continue as a member if she behaves in a way that injures the work or good name of your organization. When undesirable behavior occurs outside a meeting and the entire membership doesn’t clearly witness the facts and circumstances, a formal process for preferring charges and permitting the accused an opportunity of defense is essential.
Trials and disciplinary proceedings are probably quite rare in most small deliberative assemblies. In groups where it may be more common, such as professional or trade associations, bylaws or special rules of order usually define specialized procedures. However, every group needs to have a basic procedure for handling members who disregard group standards, and Robert’s Rules provides you with one.
Robert’s Rules advises that you limit a president’s authority to appoint members to special committees formed to investigate or manage disciplinary matters. Your bylaws need to include this limitation as an exception to any authority of the president to appoint special committees. Not unlike nominating committees, special committees that are set up to investigate and deal with disciplinary matters are best appointed by the membership, not by an officer who may have some direct personal interest in the committee’s decisions.
Checking out the facts first
Suppose that someone in the group discovers a problem that may cast a shadow on Ms. Prollydiddit’s reputation in connection with the organization. The first action to take is to have the membership appoint a committee of people whose integrity is irreproachable and give those members the task of investigating the allegations before any formal charges are mentioned.
In all cases, the details of the allegations must be excluded from the formal motion to appoint such a committee. It’s sufficient to move “that a committee of [some number] be [appointed/elected] to investigate certain allegations that, if determined to be true, would cast doubt on the wisdom of retaining Ms. Prollydiddit as a member of our organization.”
Under no circumstances is it ever in order for an individual to offer a resolution directly charging a member with an offense — only a committee may do so, and then only after a preliminary investigation determines that sufficient cause exists. Even then, it’s never appropriate to offer a resolution that reveals the nature of the offense or suggests that certain allegations are true. The group has nothing to gain and everything to lose by making the rush to judgment that these kinds of motions suggest.
The appointed committee’s job is limited to conducting a basic investigation of any allegations that underlie the proceedings. The committee may not compel anyone to come forward and give information, but it must make a concerted effort to gather facts. Any confidential information it obtains may not be used in any trial that it may recommend. But that information may be useful to the committee in making its final determination.
When the committee arrives at its conclusion, it reports its recommendation to the membership, either by offering a resolution formally charging the member with a specific offense or by declaring the allegations unfounded.
Depending on the committee’s findings, it may be a good idea to engage the subject of the investigation in a private and frank discussion and hear her spin on the spam. At this stage, a trial may still be avoidable. The accused may see the wisdom in resignation if she’s likely to be removed from membership when formal charges are brought and a trial is conducted. Conversely, she may shine the light of truth on her innocence and show her accusers to be in error or improperly motivated.
Reporting findings of cause
The foundation for a trial is established by adopting the investigating committee’s report that the allegations have merit and that facts exist to substantiate formal charges. The assembly must then make some specific decisions about the following items, which, ideally, should be the subject of the committee’s recommendations and should appear in a series of resolutions. These decisions determine the following:
The date and location of the trial, affording reasonable time for managers to prepare to present the case and for the accused to prepare for her defense.
Whether the trial will be conducted by the entire membership or by a committee.
The charges (the offense) and the specifications (the actions of the accused that give rise to the offense). Charges must cite the violated standards that give rise to penalties.
Selection of the managers, members who will present the case against the accused.
The citation of the member, requiring her to appear and show cause why the penalty being sought should not be assessed based on the charges and specifications. The citation must include the details of the penalty, charges, and specifications.
Holding a trial
The trial for a disciplinary matter of a deliberative assembly has many parallels to trials with which you may be more familiar. However, this type of trial is a private proceeding in the nature of a formal hearing, and its result is but a judgment of your assembly on the fitness of the accused to continue holding office or to remain as a member of the organization. At all times during the disciplinary process, proper precautions must be taken to provide the accused with proceedings that are irreproachable in their fairness.
Basic considerations for fairness in the trial include the following:
The accused is still afforded the right to defense counsel, and the defense counsel may be an attorney. But any defense attorney must be a member of the organization, unless the trial panel (or assembly, if the membership is conducting the trial) agrees that a nonmember attorney may be admitted.
The accused may call witnesses in her defense.
Nonmembers may be called as witnesses, but their presence may not be permitted in the trial except when they’re giving their testimony.
Opening the trial
The trial begins when the chair opens the meeting and addresses preliminary matters. Here are the steps:
1. The chairman calls the meeting to order and gives immediate notice that the meeting is in executive session. Moving to executive session means the proceedings are secret and may not be disclosed to nonmembers, under penalty of expulsion.
2. The secretary reads all the resolutions adopted in the preliminary proceedings and verifies the service of the citation on the accused.
3. The chair announces the names of the managers (members who present the case against the accused) and asks the accused whether she is represented by counsel.
4. Charges and specifications are read. The accused enters pleas of guilty or not guilty to each charge and then to each specification. If a guilty plea is entered, a trial is unnecessary, and the penalty hearing may then be held.
Trying the case
In each of the following steps, the managers present first, followed by the defense.
1. Opening statements
2. Witness testimony
3. Witness rebuttal
4. Closing arguments
During the trial, cross-examination is permitted, and witnesses may be subject to recall. No persons other than the managers or the defense may have the floor during these stages of the trial.
Deciding the verdict
Generally, the rest of the trial is downhill. The managers and the defense counsel remain and participate in the discussion; only the accused must leave the room during the deliberations.
At the outset of deliberations, the chair states the question on the guilt of the accused as follows: “The question before you now is, ‘Is Ms. Prollydiddit guilty of the charges and specifications as follows?’ [Read each charge and specification.]” Discussion and voting are handled as they are for any main motion, but a ballot vote must be taken if any member demands it. Flip to Chapter 7 for the lowdown on debating motions, and see Chapter 8 for the bottom line on voting.
In some instances, in light of facts brought up in the trial, the assembly determines that the accused is guilty of a lesser charge than the one originally proffered. It’s permissible to adopt a finding of guilt to the lesser charges, but those lesser charges must be consistent with, and within the scope of, the charges with which the accused was noticed and tried.
If the accused is found not guilty of the original charges, she’s exonerated. If she’s found guilty, the assembly or panel moves into deliberations to determine and fix the penalty. The accused is immediately notified when the deliberations are complete and the results are determined.
When the trial panel is not the assembly itself, but rather an appointed committee, the panel’s decision is framed as a recommendation to the assembly, which must act on the recommendations. In this case, the assembly must consider the recommendation in executive session, and the accused must be given the opportunity to rebut the findings of the committee. After her rebuttal, she must remove herself from the room, pending the final decisions of the assembly.
Maintaining Order in Meetings
You find problem people in all walks of life, and they’re in no short supply at meetings. Consider, for example, the member who’s a sore loser or the member who likes attention so much that she’s willing to create a scene over any little thing. People who behave this way are everywhere, and you may have little choice but to put up with them if they’re your customers, co-workers, or neighbors. But you don’t have to tolerate them in meetings.
Although you can take action when Gordy Flackflinger tunes up for a tirade, you shouldn’t really have to if your presiding officer takes advantage of this section’s techniques for taking care of problem people.
Understanding rights of the group
When you’re in a meeting, the right to say who can be present is completely within the control of your group. This right doesn’t mean that you can arbitrarily exclude a member who has a right to be there, nor does it mean that you can fail to comply with provisions of a public-meeting law.
But your assembly has the absolute right to eject a member if she becomes of sufficient annoyance that the proceedings of the meeting can’t continue peacefully. Same goes for a nonmember in a meeting of a public body — subject, of course, to provisions of your local laws regarding ejecting disruptive attendees.
Knowing what’s expected
As a member of an assembly, you have a duty in your meetings to respect the position of the presiding officer. You’re expected to generally obey her orders, but you have the right to appeal any decision in a polite and proper way.
Your presiding officer has a corresponding duty to refrain from shouting down a member or otherwise being drawn into a fracas. The chair who allows a ranting member to fizzle out usually has the most success in bringing an assembly back to order. It’s generally best for the presiding officer to remain calm and deliberate and ultimately let the membership decide questions of discipline.
Managing misbehaving members
Minor breaches of order, such as wandering beyond the bounds of the question under consideration, interrupting a speaker who has the floor, or speaking without recognition, can usually be handled by simply reminding the member of the proper way to do things. The presiding officer may say, “The member will please confine her remarks to the subject under discussion,” or “The member will please address her remarks to the chair.”
However, sometimes in the thick of it all, ol’ Gordy Flackflinger goes beyond the bounds of propriety and questions the motives of another speaker or commits some other breach of decorum (see Chapter 7). When that happens, the group can turn to a nice, polite little procedure called calling a member to order.
Calling the member to order
When Gordy Flackflinger goes off (as he’s prone to do) and starts talking about this or that, or maybe launches into some diatribe, the chair first warns Gordy that he needs to confine his remarks to the motion under consideration. But if Gordy ignores this warning, the chair may say, “The member will come to order and be seated.” This approach is the nicest way to tell Gordy to sit down and shut up. Hopefully, he gets the message.
If the chair doesn’t act quickly enough, or if a member believes the chair needs to call Mr. Flackflinger to order, the member may, without first being recognized, call out, “Ms. Chairman, I call the member to order.” The chair proceeds to handle the situation as described earlier in this section. However, if Gordy has been properly assigned the floor and the chair isn’t convinced that the complaining member’s point is well taken, she may ask the group whether Gordy should be allowed to continue speaking. A voice vote can decide that question.
“Naming” the offender
If Gordy doesn’t take the hint and continues on his errant path, the chair may direct the secretary to note the breach in the minutes. The chair can then take direct official action against the member by naming him and saying something like, “Mr. Flackflinger, the chair has asked you thrice now to refrain from personal attacks on members, yet you persist in refusing to obey the orders of the chair and continue in your conduct in a manner wholly unacceptable to the chair and the assembly.”
If Gordy doesn’t sit down and shut up, it may be time to demand an apology or even ask him to leave. But the chair shouldn’t attempt to take such action by herself. The membership gets to decide Gordy’s fate now. If you’re lucky, when things get this far, Gordy apologizes and sits down, and the chairman accepts his apology and continues with the meeting. But Gordy has a way about him that may mean you need to take the matter to the limit and turn to the membership.
Penalizing the offender
At the point the chair has reached the end of her rope in her dealings with Gordy Flackflinger, her last option is to ask the group what to do about Gordy. Should he be censured? Should he be removed from the meeting until he apologizes? Should he be expelled from membership?
If the situation has gone this far, the chair may say, “Members, the chair is at wits’ end. I regret to put the question now before you, but I find I must prepare you to speak to the question of whether Mr. Flackflinger shall be removed from the meeting. Before we consider the question, however, I ask Mr. Flackflinger, ‘Sir, do you wish to make a statement to the membership before I place the question on your removal?’”
Your chair should give Gordy a final opportunity to comply or at least speak in his own defense. But if Gordy doesn’t straighten out fast, any of the remedies mentioned is possible. The hard truth is that if Gordy can’t behave in a meeting, you don’t even have to allow him to continue his membership. But terminating his membership requires a two-thirds vote, unlike other remedies that require only a majority vote. In any case, any member can demand that a vote on this kind of decision be taken by ballot.
Removing nonmembers from the hall
You have the right to conduct your meeting without the presence of nonmembers. To that end, the chair has the authority (on her own initiative) to require nonmembers to leave the meeting. She should be ready to use this authority in the event that the peanut gallery (or any individual peanut) becomes rambunctious. Just to make sure that the chair doesn’t act in opposition to the will of the assembly, however, any member may appeal the chair’s order for nonmembers to leave; the question then becomes one for the members to decide.
After a removal has been ordered, whether it’s removal of a member or a nonmember, the chair may exercise whatever reasonable means necessary to execute the removal. If the members who were removed don’t leave of their own accord, she may appoint a committee to escort them from the meeting, or, if necessary, the chair may summon peace officers to remove the offenders and restore peace to the assembly.