NASW board response to public statement

Dear NASW Community:

The NASW board is disappointed to lose former board Secretary Nsikan Akpan from the board and both Nsikan and Mollie Bloudoff-Indelicato as co-chairs of the Governance Committee. We are also troubled that they have seen fit to share widely in recent days a distorted view of issues still being debated by the board regarding whether to amend Article VII of NASW’s bylaws, which deals with membership sanctions and termination. These issues will ultimately be decided by a vote of the full NASW membership.

We would like to help clarify the situation so that we can discuss the heart of the issue: how to develop a process that provides for reasonable due process but that doesn't suppress complaints, especially in cases where confidentiality is needed. The board’s goal is to propose, for members’ consideration, policies and procedures that support an inclusive and just community.

The board believes this is a situation of honest disagreement, and we are saddened that Nsikan and Mollie felt that resigning without warning, during an ongoing deliberative process, was the appropriate course of action. The board has considered the charges made by Nsikan and Mollie in their resignation letter and elsewhere and unanimously agrees that the board’s remaining officers and executive director have acted ethically and in the best interests of NASW and its members. We are grateful to the remaining members of the Governance Committee for their substantial commitment of time and for continuing their collaboration with us on these issues. We look forward to sharing the proposed amendment with members this summer. In the interim, we invite your consideration of the following:

  • An explanation of the process by which proposed amendments come before members for a vote

  • A history of the events and deliberations that preceded Nsikan and Mollie’s resignation

  • Responses to key points and questions that have been raised by members in recent days

  • An encapsulation of current discussion points that the board and the Governance Committee are considering together

Thank you,

Siri Carpenter, president
Jill Adams, vice president
Alex Witze, treasurer
Jenny Cutraro
Lila Guterman
Kathryn Jepsen
Seth Mnookin
Kendall Powell
Sandeep Ravindran
Hillary Rosner
Jill Sakai
Matt Shipman
Cassandra Willyard
Sarah Zielinski

Questions and Answers

What is the usual process for amending NASW’s bylaws?

The bylaws of an organization are its internal laws; they form a contract between members and the organization. Proposals to amend the bylaws can be presented for a membership vote either by the board or by petition from the members. In 2017, the board established a Governance Committee to assist with reviewing the NASW bylaws and other policies. The Governance Committee can and does originate suggestions for proposed bylaws amendments and other policy changes. In other cases, the board may ask the Governance Committee to review existing policies or provisions of our bylaws, or to recommend new ones for the members’ consideration.

Before making recommendations to the board, the Governance Committee undertakes a thorough research process, often surveying policies or practices of other membership organizations, and then discusses as a group specific recommendations to offer. These recommendations take the form of well-crafted draft policy language and are supported by thoughtful rationale statements. The recommendations are presented to the board by one or both of the co-chairs. The board then provides feedback on those committee recommendations as needed — for example, asking for clarifications or reconsideration of issues board members may bring to the fore — before voting on any final language for the proposed amendment. Any feedback is conveyed by the co-chair(s) attending the board meeting.

In between the board’s monthly conference calls, the officers often work together, along with the executive director, to discuss next steps on outstanding issues facing the board. The officers or executive director may suggest possible paths forward, but they do not, and may not, take any action on amendments or policies without the rest of the board. The executive director does not have a vote.

Only after a vote of the full board can any proposed amendment generated through this process be put in front of the membership for further discussion and ultimately a vote of the membership. As a matter of standard process, we regularly consult our legal counsel, Carter Ledyard & Milburn LLP, during the course of drafting and finalizing any policy language.

What is the history of these deliberations on the review of Article VII’s provisions for handling member complaints?

This winter, the board asked the Governance Committee to review several policy issues. These included 1) our board and officer candidate-nominations process (which are governed by Articles III and IV of our bylaws, respectively) and 2) our process for handling complaints about member violations of our policies, e.g., plagiarism or harassment (which is governed by Article VII of our bylaws). The board’s goal, in each of these, was to ensure that our bylaws are in keeping with the goal of creating an inclusive and just community.

In April, the Governance Committee, via co-chair Nsikan Akpan, submitted and presented recommended revisions to our bylaws on both these issues. We allotted time in our April and May board meetings to discuss these proposals, with a goal of sharing any proposed changes with members by mid-July, to allow sufficient time for members’ review before an October membership vote.

The board first took up the Governance Committee’s recommendations on how to handle member complaints. Like most membership organizations, NASW has standards for members. These include adherence to our Operating Principles and Conference and Meeting Code of Conduct. Enforcement is governed under Article VII, Section 4 of our bylaws, which provides a process by which people can make complaints.

During discussion at our April board meeting, the board easily reached agreement on accepting several aspects of the committee’s recommended language. Other aspects remained under discussion by the board, including when to notify a member that they have been the subject of one or more complaints and how best to provide for confidentiality in cases where it is needed (for example, in cases where a person making a complaint may have a fear of retaliation).

The officers and executive director had a phone call on May 6 to attempt to work through some of these remaining issues in preparation for continued discussion at the May meeting of the full board. During this call, Nsikan expressed positions similar to those stated in the resignation letter, including strong support for a clause that would notify the person who is the subject of a complaint immediately when a complaint is filed, saying such notification would be necessary to grant the subject time to build a defense.

The other officers (president Siri Carpenter, vice president Jill Adams, and treasurer Alexandra Witze) and the executive director, Tinsley Davis, did not share this position and advocated for a process that would provide latitude in the timing of moving forward with complaints (i.e., providing time to investigate the merit of a complaint before acting on potentially baseless complaints). At no point did any of the officers or executive director advocate for removing a member’s right to be heard on any charges.

Also during this call, the president and executive director questioned the premise, also outlined in Nsikan and Mollie’s resignation letter, that board members automatically have a conflict of interest in handling complaints that concern other board members. The other officers and the executive director suggested that this task, albeit unpleasant, is part of board members’ legal responsibility and not something we should abdicate to others in all cases.

By the end of the May 6 phone call, several questions remained under discussion, and it was decided that the next step should be to consult with NASW’s legal counsel on these questions and then continue the discussion. We were awaiting full responses to these questions to share with the board when Nsikan and Mollie informed the board of their resignations. The receipt of their resignation letter, coming as it did in the middle of an ongoing discussion, was shocking and saddening. At no time did either Nsikan or Mollie inform any board member or the executive director that they were considering resigning.

What are the legal requirements for a membership termination process?

NASW is incorporated in the State of New York and is governed by New York’s Not-For-Profit Corporation Law (NPCL). This means our bylaws must adhere to requirements spelled out by the State of New York. Our legal counsel explained the following legal requirements with regard to a membership termination or suspension according to NPCL. Specifically:

  • First, any process established by NASW for terminating members must be communicated and visible to members (i.e., in our bylaws).
  • Second, that process must allow an opportunity for the member to be given notice of the charges and an opportunity to be heard (i.e., this is the due process owed to members).
  • Finally, NASW must comply with whatever process it has established in its bylaws in disciplining members.

Beyond these basic requirements, legally speaking, NASW has broad discretion to create a process that best reflects the values of our organization and its members.

What are the officers’ and executive director’s views regarding due process?

The officers and the executive director, like the rest of the board and members of the Governance Committee, all seek to construct a fair process for our members. The position of the board is that fairness includes reducing barriers to reporting harassment or other violations. One such barrier is fear of retaliation.

At no point did any board member or the executive director suggest that we deny due process to members or that we change the procedures set forth in our bylaws without the approval of the members. The legal minimum is the right for a member to be notified of the charges and have an opportunity to present a defense to those charges; this right to be heard has never been in dispute.

But due process is not an all-or-none construct. How NASW ultimately defines due process in the member discipline procedures it establishes must balance a desire to offer more than the legal minimum with a desire to provide for complainant privacy where needed. While it must absolutely be considered that the subject of a complaint needs enough detail to be able to defend against the complaint, there is no rigid requirement that the subject of a complaint be allowed in all cases to be informed of the identity of the person who submitted the complaint, nor that the subject be informed immediately that a complaint has been made, even before it can be investigated for merit. Such requirements could suppress reporting due to concerns of retaliation, or could escalate baseless allegations, resulting in wasted time and resources.

While signed confidentiality agreements can act as a deterrent to those who would seek to subvert the process, we must consider in our ongoing deliberations that such agreements are imperfect and do not guarantee confidentiality for any party. They also do not guard against retaliation, as by an editor to a freelancer or an employer to an employee. In our counsel’s words, there is no “unbreaching a breach,” and, in general, NASW does not want to be in a position of having to bring a legal action against a member to enforce such agreements.

In cases where a complaint has been made about a board member, do all other board members automatically have a conflict of interest?

Our legal counsel has confirmed that serving on the same board does not create an inherent conflict of interest in one board member investigating another. On the contrary, Board members, including officers, are legally required to put the concerns of the organization first in any action or decision, ahead of personal or other concerns. In no way does this mean that other individuals and groups are incapable of doing so; however, the board is the only group of people within NASW legally required to do so.

As such, board members should not automatically or universally abdicate the responsibility of judging complaints regarding other board members, even though such discussions may be difficult or uncomfortable. In certain circumstances set forth in NASW’s Conflict of Interest policy, one or more board members may have a genuine conflict of interest – such as where the accused is a very close friend, relation or partner, or is in a close business relationship -- in which case they must recuse themselves from the deliberation and voting on the matter. Service on the same board, by itself, is not one of those circumstances.

Disciplinary action for a board member’s failure to disclose an actual or possible conflict of interest is also covered under NASW’s Conflict of Interest policy.

Where are we in the process of proposing changes to the bylaws? What happens next?

With regard to the nomination process, the board has barely begun discussions about the ideas put forward by the Governance Committee, though we hope to have a proposal for members’ consideration this fall. With regard to handling complaints about members, one key hurdle is in figuring out how to ensure privacy in certain cases — such as those that involve harassment or concerns about retaliation. Governance committee members and board members agree that there may be scenarios where confidentiality might be considered or required for either party. The board and Governance Committee are in the midst of discussions about how well we can meet these needs while preserving reasonable due process. Members will vote on proposed changes this fall.

How will NASW members be able to contribute to the discussion?

Because the issue of membership sanctions has many facets and reflects deeply on our community’s values, there will be a comment period on any proposal the board ultimately votes to bring forward, before the language is finalized. That will be members’ opportunity to evaluate how well the proposal reflects the values of the community and to make suggestions on the proposed policy before it formally comes to a membership vote.

After the comment period, the final proposal should be available in late August or early September, leaving several weeks for members to discuss before the annual meeting in Pennsylvania in October, when a vote will be taken. As with all NASW votes, members will be able to register their choices online in the two weeks preceding the meeting if they cannot attend the meeting in person.

Until then, thank you to each of you who has engaged in discussing these issues. Please be sure to contribute your thoughts during the official comment period on the forthcoming proposal when it opens this summer at nasw.org.

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May. 30, 2019