In the near future, I hope to post a more detailed explanation of the committee majority's rationales in developing this process. JG

I have an administrative-based comment for Section 1. I think the notification procedure for notification of termination for reasons other than non-dues payment got conflated with notifiying those who simply don't pay.

The initial phrasing was "In each case, the executive director shall give the delinquent member notice by any method reasonably calculated to provide actual notice" This was in the version the lawyers reviewed and it was fine. I don't know why the "and and by first-class mail or overnight delivery by a nationally recognized carrier to the member's last address as shown on the corporation's records" was added.

Every year there are 200-400 people who do not renew after 12 months. Sending out first class mail or overnight mail (egads!) to these people before we remove the name from the database is a huge burden on time (we have one employee) and money (postage, printing, admin). We already send multiple personalized email reminders and written dues notices (e.g. ScienceWriters, card has an expiration date, etc.) before suspending services and would do the same before removing the name from the database.

Unless we want to be required to commit large resources chasing people who have had ample notice to renew, we should remove the second part of the phrase "and and by first-class mail or overnight delivery by a nationally recognized carrier to the member's last address as shown on the corporation's records"

I checked with the NY attorney about taking out the phrase in Section 1 that would require us to send paper notification to all non-renewing members 12 months after their non-payment. As suspected, it is ok to take it out. We of course leave it in the notification process for disciplinary procedures.

Thus we are not required to spend money and admin time just to send paper mail to people who choose not to renew for whatever reasons. We will continue to send out multiple personalized email notices, paper notices in ScienceWriters, etc.

The omitted language is denoted with a strikethrough above.

I recommend anyone leaving a comment save it elsewhere and cut and paste it here. I just lost my beautiful comments because something went wrong.

My much shorter version is: thanks for the hard work all and I agree with what the committee has put forth. Especially the undefined terms.

And thanks for the clarification David. The list issue has been discussed ad nauseam elsewhere and I'd recommend you go dig them up rather than rehash it all here (I think in the archives somewhere). I think we should keep list and membership issues separate as you don't need to be a member to be on the lists.

I was hoping you would elaborate on why you thought Norman might be right about the legal exposure, because I just don't see it. I don't think list discipline is being used to "suppress dissent and criticism" of NASW, and even if it was, I'm not sure how that would violate anyone's Constitutional rights (the U.S. one, not ours, since you don't have to be a member to be on the list and therefore not bound by the NASW constitution) and therefore open the organization up to being sued. After all, members are free to come and go. If I thought list discipline was "suppressing criticism," I would not remain a member because that would be hypocritical of the organization. But it would not be a legal issue.

David, The committee folded Norman's concerns into five questions that we asked an NASW lawyer in August. Here is the response, direct and unfiltered. Read down to Q4 to see that they have a very different interpretation than Norman of the liability risk posed by listserv discipline. Best, Dan MEMORANDUM TO: TINSLEY DAVIS NATIONAL ASSOCIATION OF SCIENCE WRITERS, INC. FROM: LAW OFFICES OF PAMELA A. MANN RE: PROPOSED BYLAW LANGUAGE ON SANCTIONS - ARTICLE VIII You have asked us for advice on the proposed revision to Article VIII – Sanctions, of the Bylaws of the National Association of Science Writers (“NASW”). In particular, you have asked us to review the proposed language for compliance with the New York Not-for-Profit Corporation Law (the “N-PCL”) and general best practices for an organization exempt from taxation under Section 501(c)(6) of the Internal Revenue Code. You have also asked us to respond to several questions raised by the committee drafting the proposed language. Please find our analysis and responses below. The N-PCL does not provide default guidelines for suspension and termination of members. As a result, a New York not-for-profit corporation is permitted to develop bylaws that provide a structure for internal governance matters, provided they do not contravene generally accepted principles of law such as due process. Section 601(e) of the N-PCL, in its brevity, expresses this principle when it provides that, unless “otherwise provided by the N-PCL, the certificate of incorporation, or the by-laws” of a corporation, “membership shall be terminated by death, resignation, expulsion, expiration of a term of membership or dissolution and liquidation” of the corporation. Expulsion is included as a potential means for termination of membership, but no procedures or standards for expulsion are included in the law. Thus, it is permissible for the Bylaws of NASW to provide procedures for termination of members as well as other, less severe, disciplinary actions toward members. There is case law in New York that provides guidance on termination procedures for not-for-profit membership corporations. Corporations affirmatively have the power and authority to remove members for cause. In general, courts do not intervene in these internal corporate decisions so long as there are established internal procedures and the expulsion process does not violate principles of natural justice. Of course, the established internal procedures must also be fairly and honestly administered by the organization in order to be upheld and cannot violate any statute or public policy. The phrase “principles of natural justice” has been interpreted by courts in New York as requiring organizations to follow proceeds that adhere to the minimum standards of due process. The minimum standards of due process include the opportunity for a fair and unbiased hearing, formal presentation of charges, adequate notice of the time and place of the hearing and an opportunity for defense against the charges before a decision is made. Appeals to a court from a professional society’s decision of expulsion are permissible in three circumstances: if these principles of natural justice are violated, if the internal appeal structure is biased, or the organization’s own rules are violated in the termination process. In general, the procedures proposed by the committee for suspension and termination of members of NASW are sound, consistent with relevant law and, provided they are fairly administered, will satisfy the principles of natural justice. We have attached some proposed revisions to the proposed language for your review, and address some of the specific questions you raised below. In particular, we propose separating Section 1 into three sections, to clarify the distinction between termination for non-payment of dues and suspension or termination for conduct harmful to NASW. We have also added some provisions to clarify the procedures surrounding the hearing to review complaints. Please let us know if you have any further questions or if we can be of any additional assistance. Questions from the Committee Q1. What are the risks and benefits of the proposed new procedures, which give disciplinary power to the Board or a randomly selected committee. Their "guilty verdicts" would be subject to appeal but not those exonerating the accused. Any problems with this approach? A: The approach does not raise due process concerns for the members, since there is notice of the charges, a chance to present exonerating evidence, and an opportunity for appeal for guilty verdicts in the procedures. Also, the opportunity for appeal of a guilty verdict to the entire membership provides a significant level of protection; however, the language that provides that the entire membership will have access to information deemed pertinent raises some concerns, since the relevant information may be defamatory or of a personal nature. This risk is likely contained because anyone seeking appeal to the entire membership would waive his or her right to privacy in this case. A second risk raised by the proposed procedures is a logistical concern. Before our revisions, the description of the “randomly selected committee” of members did not specify that the members who are selected to serve on such a committee be willing and able to do so. We are concerned that if members were selected who are not sufficiently engaged with NASW’s activities to participate in a hearing, the procedures outlined in the Bylaws could be violated because a randomly-selected committee of seven would not be composed. This would leave the process vulnerable to a legal challenge by a disgruntled, accused member. We revised the text to provide that a committee of seven members will be composed through random selection of members who are willing and able to serve on such a committee in order to avoid this risk. Q2. The specific conduct that is "prejudicial to the best interests of the organization" is not defined. Members therefore may be unsure of what conduct can get them disciplined or expelled. Is that a problem? Is that fair? Does that expose us to liability? A: An organization is always vulnerable to liability when making suspension or termination decisions. However, in order to leave the Board and other determining bodies discretion in such matters, general language such as that quoted above is typically included in provisions such as these without further clarification. As a practical matter, it may be helpful to members to initiate informal conversations or panels, through the newsletter or at the next annual meeting, that gives members a chance to question Board members about the meaning of the provision and the types of behaviors or actions that might be deemed prejudicial. Q3. What is the potential for abuse in these disciplinary procedures? Could they be used to silence members with legitimate criticisms about NASW policies? A: We do not see a significant potential for abuse of power in these disciplinary procedures. The power to accuse and impose judgment is not concentrated in the Board of Directors, the officers, or any other small group. Regarding the concern that the procedures could effectively silence members with legitimate criticisms to share, we think the procedures provide sufficient recourse to the full membership to prevent such an occurrence. The procedures for hearing a complaint include the right to appeal to the entire membership. With our modifications to the text, discussed above in the response to question 1, the accused has the right to relate the charges against him or her to the members on the occasion of the appeal, so this will be an opportunity for the member to voice his or her complaints. If a member is exonerated after the initial hearing, he or she will still have the normal powers of a member to share legitimate criticisms with other members. The N-PCL provides a number of ways in which members can communicate amongst themselves, so this mitigates the concern that these procedures would isolate any member with a legitimate criticism from sharing his or her complaint with the membership. For example, Section 603 of the N-PCL provides that 10% of the members can call a special meeting of the members and Section 621 of the N-PCL provides members with the right to see and copy the list of members, among other rights. Q4. Would enforcement of policies for the NASW listservs be considered disciplinary action under Article VIII when they are applied to NASW members? Bear in mind that NASW listservs are open to the general public. A: The disciplinary actions that can be imposed by the Bylaws, aside from the automatic termination provisions described in Section 2, cannot be imposed without following the procedures in Section 4. We assume that the enforcement of the listserv policies does not include suspension or termination of membership in NASW, but is limited to rights and powers to participate on the NASW listservs themselves. Also, we assume that these policies were agreed to by members and the general public at the outset of any participation on the listserv, and are applied consistently toward both groups. As long as a member is not at risk of being suspended or terminated from membership in NASW as a result of the enforcement of the listserv policies, it would be a disciplinary action outside of Article VIII. However, it is conceivable that a member’s actions on the listserv could be considered “conduct substantially prejudicial to the purposes and interests of the Association” that might merit suspension or termination of their membership and if so, then the procedures, including the formal complain, described in Section 2 should be followed. Q5. What is the difference between (a) "good faith determination by the board" and "determination by the board"? There is no legally binding difference between the two phrases, since board members have a legal obligation to fulfill their duties in good faith and in accordance with all of their legally imposed fiduciary duties towards the organization. Including a statement that the board make a determination in “good faith” is a rhetorical reminder of this obligation, and so is often included in documents to exhort the board to honor this duty and assure others that the board will adhere to their legal obligations. (b) "conduct materially and seriously prejudicial to the corporation's purposes and interests" and "conduct prejudicial to the corporation's purposes and interests"? If a legal case were brought to determine whether conduct was sufficiently prejudicial to warrant the sanction brought by the organization, the phrase “materially and seriously” would be examined by the court in the process of determining the facts of the case. Including this phrase would increase the burden on the organization to show that the actions it has censured were severely detrimental to the organization and, the use of the word materially might require the organization to show a direct financial harm from the alleged prejudicial action. There is no set legal interpretation or definition of a “materially and seriously prejudicial” action that will establish a standard of conduct or clear guideline for the Board or any reviewing committee, so we would advise the Board to leave itself and any reviewing committee the maximum amount of discretion but retain its interest in enforcing a high threshold by employing the phrase “conduct substantially prejudicial to the corporation’s purposes and interests” in the Bylaws. (c) "substantial conflict of interest" and "conflict of interest"? As above, the inclusion of the word “substantial” would raise the burden of proof in any potential legal case about the severity of the conflict of interest, but there are no set guidelines or frameworks to apply to determine whether a conflict of interest rises to the level of “substantial”. For that reason, we would recommend using the phrase “conflict of interest” which provides more discretion for the determining body to define what is determined as a conflict of interest.

Before I reject this conference, let's see if I can get a straight answer.

The worst, most pointless, counterproductive change in this amendment is the change from 20 members required to bring charges to 3 members required to bring charges. If we revised Article VIII because Tagaki told us it would potentially leave us open to liability, changing the threshold from 20 to 3 would increase our liability, because it would make it easier to bring charges (substantiated and unsubstantiated), and therefore it will leave us open to greater liability.

I asked this question in the committee and you brushed it aside. Now I'd like to ask again:

Why did you change the number of members required to bring charges from 20 to 3? Doesn't this increase our exposure to liability?

Norman asks whether reducing the number of members needed to initiate a complaint to three from 20 increases the organization's liability.

The answer is no. If this were the only change made in the process, it might be, but there are many other changes that collectively reduce the liability exposure dramatically. The committee (except for Norman) agreed that three struck an appropriate balance between too easy and too hard to bring a complaint.

Contrary to Norman's false (if not mendacious) assertion that his concerns have been "brushed aside," all this was discussed at length within the committee.

I’m posting here to clear up some of the inaccuracies in Norman’s message so that members can better understand how and why the new Article VIII was developed. I’ll address some of Norman’s points in the order that he made them.

(1) Norman claims that NASW did not have to make changes to the constitution for legal reasons. In fact, a legal advisor recommended changes. When Tinsley Davis took over as Executive Director in 2009, she undertook a long-delayed legal review of the NASW Constitution. The constitution had been drafted decades ago and had not been updated since then, and she properly ran it by experts on the legal requirements of 501c(6) corporations such as NASW that operate under New York State law. An NASW lawyer named Gene Takagi scrutinized the old Constitution and spotlighted parts that he believed needed changing. So, the board got its legal advice directly from the lawyer. Norman’s claim that the board wrote the changes and sent them to the lawyers is false. Board members carefully reviewed the lawyer’s recommended changes and discussed them carefully and in great detail during a five-hour board meeting in October 2009 in Austin. Some of the lawyer’s recommended changes were incorporated, and others were not, for various reasons. All were carefully considered.

In January Norman and others raised concerns about a change in Article VIII, the section dealing with NASW procedures for suspension, expulsion or other disciplinary action. In response, the NASW board decided to hold a vote in February as to whether accept the entire Constition, reject it, or accept all but Article VIII. The membership voted to accept all but Article VIII. Then the board appointed an ad hoc committee cochaired by a board member (me) and a nonboard member (John Gever). All other members of the Article VIII committee were nonboard members.

(2) John Gever has addressed this in his comment.

(3) The ad hoc committee to hear a case would be composed of randomly selected members who agree to serve. The Article VIII committee came up with the idea after listening to objections to the version of Article VIII in the board-approved draft of the Constitution from fall 2009, which called for the board to hear disciplinary cases. Norman and others made the case that this represented a power grab by the board. While our committee (except for Norman) regarded this as implausible, we did agree with Norman that as a safeguard, the case against a board member should not be tried by the board. Rather, a rank-and-file member should have the choice of being tried by a committee of his or her peers rather than the board. Norman insisted repeatedly that the procedure in the original constitution would be better. It called for a hearing by the entire membership at a public meeting. The committee disagreed with Norman and agreed with the NASW lawyer that this raised serious privacy concerns.

At the same time, Norman and others had been concerned about cronyism in cases where the board hears a case against a fellow board member. This was a reasonable concern, the committee decided, and we voted that cases involving board members should be heard by general members rather than by board members.

In addition, we created another safeguard that mitigated against a hypothetical power grab by the board. Any member can appeal a “guilty” verdict to the general membership, which must uphold the verdict by a two-thirds majority. We decided and the lawyer agreed that in this case the member would be waiving privacy rights by agreeing to go public, so it removed the possibility of privacy violations.

Norman is correct that members with conflicts of interest are supposed to disqualify themselves from the ad hoc committee. That’s because six of seven members of the committee agreed that trying to define a conflict of interest would be impossible, so we left it undefined.

(4) Norman’s claim that List Rules are more likely to bring a lawsuit than the old Article VIII public hearings is not substantiated by anything the NASW lawyers told us, and the committee chose to get its legal advice from a lawyer rather than from Norman. See my previous posting containing the comments and Q&A from the NASW lawyer.

(5) Freedom of expression. Our committee was assigned the task of modifying Article VIII, not rewriting the entire Constitution. Therefore this discussion is off point in a discussion of Article VIII. Norman will disagree and say that we should have included listserv rules in Article VIII, but the president and the committee disagreed.

(6) Norman allows that “this revision to Article VIII has a few beneficial changes.” I’m glad to hear that he recognizes that.

(7) Norman claims that the committee got no legal advice. This is a half-truth at best.

NASW received legal advice on the Constitution last fall, and the Committee was privy from the beginning to memos on the subject from not one but two law firms. They were not in fact second-hand summaries from non-lawyers—they were written by the lawyers themselves. Norman wanted the committee to have repeated and direct access to the lawyers. To manage legal costs, however, we decided to work from the legal advice we received initially, draft a document, then get legal advice on our draft. This is what occurred. Norman also claims the lawyers don’t understand NASW. He has no evidence to back that up since he did not speak with the lawyers. The NASW lawyers in fact do have a basic understanding of NASW’s needs because they spoke extensively with NASW executive director Tinsley Davis about this.

#

Thanks for the responses to the questions I raised. Seeing the lawyer's memo is helpful. I would like to add my thanks to the committee members who put in their time thrashing over these issues, and for their help in clarifying the process and the article and responding to questions. Just one more question. I would like to see someone from the committee address what seems to be Norman's major point on the changes, namely the number of people needed to initiate the process. What is the reason for changing the requirement from 20 to 3 members to initiate an ouster? The only answer given so far is that it was to strike a balance between "too easy and too hard." I don't think that's really an adequate answer for such a proposed dramatic change in process. Is there really any reason to believe that the process has been "too hard" in its present form? Based on what? Has anyone ever tried to bring such a proceeding and found it to be too hard, or is this purely theoretical? On the face of it, it seems to me the greater danger is in making the process "too easy," if only because the process outlined here will take up a lot of time for a lot of people. Is it true, as Norman says, that no such proceeding has ever been brought in 75 years? Is there really a need to make it easier?

OK, I can't get an answer to my first question. Here's my second question:

Suppose the Cybrarian moderates a member who subscribes to the list, and the member thinks the moderation is unfair. That member, and 2 other members, can decide that the conduct of the Cybrarian is substantially prejudicial to the best interests of the NASW, and bring a disciplinary charge against him. Since the Cybrarian is an employee of the NASW, every officer and Board member is his employer, so they can't participate in the process because they have a conflict of interest. The complaint would then be heard by the randomly-selected 7-member Ad Hoc Comittee.

Corrrect?

I'm posting this to the members-only discussion area at http://www.nasw.org/members/nasw_constitution/ because that's the only place Board members are willing to answer, and also to nasw-talk, because almost nobody reads the members-only discussion area.

Re: Norman's hypothetical disciplinary procedure against the cybrarian -- I think he's making up a conflict of interest that doesn't really exist. In that universe, we wouldn't be able to discipline Tinsley or Lynne either, and that's just preposterous.

In answer to David's question on why we decided that three people should be able to press a complaint, our committee rethought the disciplinary policy from the ground up. We didn't see any reason to hold the previous language sacrosanct. Instead, we considered the odds that a single person might press a spurious charge and waste people's time. We considered that possible. We thought it was very unlikely that three NASW members would agree to press spurious charges, considering that they would have to do the work to document the charges in making the complaint. Do we know that for sure? No. Does Norman know that 20 is better? No. There is no science here. This was a judgment call, based on our sense of fairness and what people were likely to do.

Dan