Gregg Patterson
President, “Tribal Magic”
Gone Bad:
Sometimes members “go bad”. And they need to “be gone.”
Sometimes Boards “do bad” when suspending or expelling members who’ve “done bad”—and get themselves into a “legal pickle” because of it.
Club’s need to do “due process” right to make sure those who’ve “done bad” are spanked, suspended or expelled in a legal and defensible way.
Club’s need to do “due process” right to make sure members who shouldn’t be spanked, suspended or expelled are protected from an arbitrary and capricious Board that has, through anger, arrogance, impatience or incompetence, “done bad” during the suspension or expulsion process.
To protect the members from The Bad Member and to protect the member from The Bad Board, bad behavior needs a fair hearing.
And here’s the best Fair Hearing Plan in clubdom.
Getting a Fair Hearing:
The following is a comprehensive Fair Hearing Plan that protects the club from the Aberrant Member and the Member from the Aberrant Board when a suspend-able or expellable offence is under review. It’s neither simple nor quick. But it’s defensible. Fair.
And legal.
HEARINGS AND APPELLATE REVIEWS
1.GENERAL PROVISIONS
1.1 INTRA-ORGANIZATIONAL REMEDIES
The intra-organizational remedies and the hearing review body provided for in Article II, Section 12 of the Bylaws of The High and Mighty Country Club (“Bylaws”) are quasi-judicial in structure, and said body shall have no power or authority to hold legislative notice and comment type hearings or to make legislative determinations, or determinations as to the substantive validity of the Bylaws or the House Rules.
Whenever the substantive validity of the Bylaws or House Rules is the sole issue, the member must first present his or her case to the Board of Directors. When the Board of Directors has issued a final decision, the member must exhaust his or her Arbitration rights as set forth at Article II, Section 16 of the Bylaws before seeking judicial review.
1.2 EXHAUSTION OF REMEDIES
If adverse action described in Article II, Section 12 of the Bylaws is taken or recommended, the member must exhaust the remedies afforded by the Bylaws and this Fair Hearing Plan before resorting to formal legal action challenging any recommendation or decision, the procedures used to arrive at the recommendation or decision, or asserting any claim against The High and Mighty Country Club or members of The High and Mighty Country Club or participants in the investigation and/or the decision-making process.
1.3 SUBSTANTIAL COMPLIANCE
Technical, insignificant, or non-prejudicial deviations from the procedures set forth in the Bylaws or the House Rules shall not be grounds for invalidating the action taken. The time periods specified in this Fair Hearing Plan are to assist those named to accomplish their task but shall not be deemed to create any right for a member requesting a hearing.
1.4 GROUNDS FOR HEARING
Except as otherwise specified in the Bylaws and the House Rules, any one or more of the following actions or recommended actions, taken for a disciplinary cause or reason, shall be deemed actual or potential adverse action and constitute grounds for a hearing:
(a) a member’s expulsion or recommended expulsion from The High and Mighty Country Club and termination of his or her rights and privileges of membership;
(b) a member’s suspension or recommended suspension of his or her rights and privileges of membership; or
(c) any other person entitled to membership privileges as provided in Article II, Section 9 of the Bylaws, who is suspended or recommended for suspension of membership privileges.
2. DISCIPLINARY ACTIONS THAT ARE NOT GROUNDS FOR HEARING
There are no hearing rights for disciplinary actions that are imposed by the Board of Directors, or its designee, that are considered less severe forms of disciplinary measures.
Except as otherwise specified in the Bylaws or House Rules, the Board of Directors, or its designee, may impose less severe forms of disciplinary action (e.g., admonition, oral or written reprimand, probationary period, etc.). There are no hearing rights for the Club manager’s decision to temporary deny the use of The High and Mighty Country Club facility to any person otherwise entitled to membership privileges for a period of time that is less than sixty (60) days. There are no hearing rights for “suspension” for financial delinquencies. Generally speaking, if a disciplinary action and/or recommended disciplinary action does not affect a member’s “significant economic interest,” then the member is not entitled to a hearing. The “less severe disciplinary measures” referenced in this section are meant to be “illustrative” and are not all inclusive. The Board of Directors has considerable discretion in fashioning a less severe disciplinary measure that will address a specific disciplinary issue.
For the purposes of the Bylaws and these House Rules, “disciplinary cause or reason” includes, but is not limited to, conduct which is unbecoming a member, such as offensive, ungentlemanly, unladylike behaviour, or behaviour which is likely to endanger or impair the welfare, interest or character of the Corporation, or which is in violation of the Bylaws, House Rules or other rules or regulations of the Corporation, or for failure to pay indebtedness to the Corporation as set forth in the Bylaws and/or House Rules.
2.1 NOTICE OF ACTION OR PROPOSED ACTION
In all cases in which the action or recommended action constitutes “grounds for hearing,” as defined in this Fair Hearing Plan, the Board of Directors, or its designee, shall give the member prompt written notice of the action or recommendation. Such notice shall include all of the following:
(a) generally state the reasons for the action or recommended action;
(b) that the member has a right to request a hearing on the action or recommendation; and
(c) advise the member that such request for hearing must be in writing and received by either the President of the Club or Club manager within thirty (30) days after the affected member’s receipt of the Notice of Action or Proposed Notice of Action.
2.2 REQUEST FOR HEARING
The member shall have thirty (30) days following receipt of notice of such action to request a hearing. The request shall be in writing addressed to the Board of Directors with a copy to the Club manager. In the event the member does not request a hearing within the time and in the manner described, he or she shall be deemed to have accepted the recommendation, decision, or action involved, and it shall thereupon become the final recommendation or action of the Board of Directors.
2.3 TIME AND PLACE FOR HEARING/NOTICE OF HEARING
Upon receipt of a request for a hearing, the President of the Board of Directors shall schedule a hearing within thirty (30) days from the date he or she receives a request for a hearing. The President of the Board of Directors shall give notice to the member of the time, place and date of the hearing, which shall not be earlier than thirty (30) days after the notice is given. The date for commencement of the hearing shall be not less than thirty (30) days and not more than sixty (60) days from the date of the notice of the hearing. However, the date of the hearing may be delayed upon the stipulation of both parties or by the Hearing officer for good cause.
2.4 NOTICE OF CHARGES
As part of, or together with, the notice of hearing required by Article II, Section 12, the President of the Board of Directors, on behalf of the Board of Directors, shall state in writing the reasons for the proposed action taken or recommended, including the acts or omissions with which the member is charged. Amendments to the Notice of Charges may be made from time to time, but not later than the close of the case by the Board of Directors’ representative at the hearing. Such amendments may delete, modify, or add to the acts, omissions or reasons specified in the original Notice of Charges.
Notice of such amendment shall be given to the Hearing Officer and each party. If a member or other person under review promptly requests a postponement from the Hearing Officer, he/she shall be entitled to a reasonable postponement of the hearing but only if necessary to prepare a response or defence to any such amendment that adds acts, omissions, charts, or reasons to the original Notice of Charges. The Hearing Officer shall give prompt notice to the parties and the members of the Judicial Review Committee of each such postponement.
2.5 JUDICIAL REVIEW COMMITTEE
When a hearing is requested, the President of the Board of Directors shall appoint a Judicial Review Committee, which shall be composed of no fewer than three (3) members. Alternate candidates for membership on the Judicial Review Committee, usually one (1) in number, shall also be appointed by the President of the Board of Directors. Alternate candidates will replace members who become unavailable or are disqualified. The members and alternates selected for the Judicial Review Committee shall gain no direct financial benefit from the outcome of the hearing, and shall not have acted as an accuser, investigator, fact finder, initial decision maker or otherwise have actively participated in the consideration of the matter leading up to the recommendation or action.
However, knowledge of the matter involved shall not preclude a Club member from serving as a member or alternate on the Judicial Review Committee. Such appointments shall include designation of one of the appointees as Chair of the Judicial Review Committee. Membership on the Judicial Review Committee should consist of former officers of the Board of Directors or former members of the Board of Directors. In the event it is not possible to appoint a Judicial Review Committee from former members of the Board of Directors, the President of the Board of Directors may appoint other members of The High and Mighty Country Club who are in good standing. Upon close of the hearing, the alternate may be excused and the members shall proceed with their deliberations. If during deliberation one of the members is unable to complete deliberations, the alternate may be recalled to substitute for that member. When an alternate substitutes for a member, deliberations must start over.
2.6 FAILURE TO APPEAR OR PROCEED
A Member or other person’s failure, without good cause, to attend such a hearing personally or to proceed in an efficient and orderly manner shall be deemed to constitute voluntary acceptance of the recommendation(s) or action(s) involved, which shall then become the final recommendation or action of the Board of Directors.
2.7 POSTPONEMENTS AND EXTENSIONS
Once a request for hearing is initiated, continuances and extensions of time beyond the times permitted in the Bylaws may be granted upon agreement of the parties or by the Hearing Officer on a showing of good cause.
2.8 HEARING PROCEDURE
2.8-1 PRE-HEARING PROCEDURE
(a) A member shall have the right to inspect and copy at his or her expense any documentary information relevant to the charges which the Board of Directors has in its possession or under its control, as soon as practicable after the receipt of the request for a hearing. The Board of Directors shall have the right to inspect and copy at the Board of Directors’ expense any documentary information relevant to the charges which the member has in his or her possession or control as soon as practicable after receipt of the Board of Directors’ request.
The failure of either party to provide access to this information at least fifteen (15) days before the hearing shall constitute good cause for a continuance. The right to inspect and copy by either party does not extend to confidential information referring to individually identifiable Club member or members, other than the member or other person who has requested a hearing.
(b) If a party’s request for access to information is denied, either party may request a ruling by the Hearing Officer, who shall consider and rule upon such request and may impose safeguards for the protection of confidential information. When ruling upon such requests, the Hearing Officer, among other factors, shall consider the following:
(i) whether the information sought may be introduced to support or defend the charges;
(ii) the exculpatory or inculpatory nature of the information sought, if any;
(iii) the burden imposed on the party in possession of the information sought, if access is granted; and
(iv) any previous request for access to information submitted or resisted by the parties to the same proceeding.
(c) At the request of either side, the parties shall exchange lists of witnesses expected to testify and copies of all documents expected to be introduced at the hearing. Failure to disclose the identity of a witness or produce copies of all documents expected to be produced at least ten (10) days before the commencement of the hearing shall constitute good cause for a continuance.
(d) Copies of any written statements by witnesses shall be provided to the member under review.
(e) It shall be the duty of the member and the Board of Directors or its designee to exercise reasonable diligence in notifying the Hearing Officer of any pending or anticipated procedural disputes as far in advance of the scheduled hearing as possible, in order that decisions concerning such matters may be made in advance of the hearing. Objections to any prehearing decisions may be made succinctly at the hearing.
(f) Voir dire: The member shall be entitled to a reasonable opportunity to question and challenge for cause the impartiality of Judicial Review Committee members and alternates and the Hearing Officer.
Challenges to the impartiality of any Judicial Review Committee member or the Hearing Officer shall be ruled on by the Hearing Officer.
2.8-2 REPRESENTATION
The member, at his or her own expense, may choose to be represented by legal counsel in any phase of the hearing. In the absence of legal counsel, the member shall be entitled to be accompanied by and represented at the hearing only by a member in good standing of The High and Mighty Country Club. In the absence of legal counsel, the Board of Directors shall appoint a representative to present its action or recommendation, the materials in support thereof, examine witnesses, and respond to appropriate questions.
2.8-3 THE HEARING OFFICER
The President of the Board of Directors shall appoint a Hearing Officer to preside at the hearing. The Hearing Officer shall be an attorney-at-law qualified to preside over a quasi-judicial hearing and preferably with experience in administrative hearing matters. An attorney who has been previously utilized by The High and Mighty Country Club for legal advice regarding its affairs and activities shall not be eligible to serve as Hearing Officer. The Hearing Officer shall gain no direct financial benefit from the outcome of the hearing.
The Hearing Officer must not act as a prosecuting officer or as an advocate for the member or the Board of Directors. The Hearing Officer shall preside over the voir dire process and may question panel members directly, and shall make all rulings regarding service by the proposed hearing panel members/alternates and the hearing officer. The Hearing Officer shall endeavor to assure that all participants in the hearing have a reasonable opportunity to be heard and to present relevant oral and documentary evidence in an efficient and expeditious manner, and that proper decorum is maintained. The Hearing Officer shall be entitled to determine the order of, or procedure for, presenting evidence and argument during the hearing and shall have the authority and discretion to make all rulings on questions, which pertain to matters of law, procedure or the admissibility of evidence.
The Hearing Officer’s authority shall include, but not be limited to, making rulings with respect to requests and objections pertaining to the production of documents, requests for continuances, designation and exchange of proposed evidence, evidentiary disputes, witness issues, including disputes regarding expert witnesses and setting reasonable schedules for timing and/or completion of all matters related to the hearing. If the Hearing Officer determines that either side in a hearing is not proceeding in an efficient and expeditious manner, the Hearing Officer may take such discretionary action as seems warranted by the circumstances, including, but not limited to, limiting the scope of examination and cross-examination and setting fair and reasonable time limits on either side’s presentation of its case.
If requested by the Judicial Review Committee, the Hearing Officer may participate in the deliberations of such committee and be a legal advisor to it, but the Hearing Officer shall not be entitled to vote. In all matters, the Hearing Officer shall act reasonably under the circumstances and in compliance with applicable legal principles. In making rulings, the Hearing Officer shall endeavor to promote a less formal, rather than more formal, hearing process and also to promote the swiftest possible resolution of the matter consistent with the standards of fairness set forth in the Bylaws. When no attorney is accompanying any party to the proceedings, the Hearing Officer shall have the authority to interpose any objections to and initiate rulings necessary to ensure a fair and efficient process.
2.8-4 RECORD OF THE HEARING
A certified court reporter shall be present to make a record of the hearing proceedings and the prehearing proceedings if deemed appropriate by the Hearing Officer. The cost of attendance of the court reporter shall be borne by The High and Mighty Country Club, but the cost of the transcript, if any, shall be borne by the party requesting it. The Judicial Review Committee may, but shall not be required to, order that oral evidence shall be taken only on oath administered by any person.
2.8-5 RIGHTS OF THE PARTIES
(a) Both sides at the hearing shall have all of the following rights:
(i) To ask Judicial Review Committee members and the Hearing Officer questions which are directly related to determining whether they are impermissibly biased and to challenge the impartiality of any member or the presiding officer. Any challenge directed at one or more members, or the Hearing Officer, shall be ruled on by the Hearing Officer;
(ii) To call and examine witnesses;
(iii) To introduce exhibits or other documents;
(iv) To cross-examine or otherwise attempt to impeach any witness who shall have testified orally on any matter relevant to the issues, and otherwise to rebut any evidence; and
(v) To be provided with all information made available to the Judicial Review Committee.
(b) If the member does not testify, the member may be called by the representative of the Board of Directors and examined as if under cross-examination.
2.8-6 MISCELLANEOUS RULES
Judicial rules of evidence and procedure relating to the conduct of a hearing, examination of witnesses, and presentation of evidence shall not apply to a hearing conducted under this Fair Hearing Plan. Any relevant evidence, including hearsay, shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the admissibility of such evidence in a court of law. The Judicial Review Committee may interrogate the witnesses or call additional witnesses if it deems such action appropriate. Each party shall have the right to present oral argument at the conclusion of the case. At its discretion, the Judicial Review Committee may request or permit both sides to file written arguments following conclusion of the presentation of oral testimony.
2.8-7 BURDENS OF PRESENTING EVIDENCE AND PROOF
(a) At the hearing, the Board of Directors shall have the initial duty to present evidence, which supports the charge, action or recommended action. The member shall present evidence in response. The presenter for the Board of Directors shall be provided an opportunity to rebut the member’s response.
(b) The Board of Directors shall bear the burden of persuading the Judicial Review Committee by a preponderance of the evidence that the action or recommendation is reasonable and warranted.
2.8-8 ADJOURNMENT AND CONCLUSION
After consultation with the chair of the Judicial Review Committee, the Hearing Officer may adjourn the hearing and reconvene it at the convenience of the participants. Upon conclusion of the presentation of the oral and written evidence and argument, the hearing shall be closed. The Judicial Review Committee shall thereupon, outside the presence of any other person, except the Hearing Officer, conduct its deliberations and render a decision and accompanying report.
2.8-9 BASIS FOR DECISION
The decision of the Judicial Review Committee shall be based on the evidence introduced at the hearing, including all logical and reasonable inferences therefrom.
2.8-10 DECISION OF THE JUDICIAL REVIEW COMMITTEE
Within thirty (30) days after final adjournment of the hearing, the Judicial Review Committee shall render a written decision, which shall include findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached. A copy of the decision shall be simultaneously forwarded to the member, the Board of Directors, and the Club manager. The decision of the Judicial Review Committee shall be considered final, subject only to such rights of appeal or review as described in the Bylaws. The final decision of the Judicial Review Committee must be sustained by a majority vote of the members voting.
2.9 APPEALS ARE SUBJECT TO THE ARBITRATION CLAUSE IN THE BYLAWS
2.9-1 TIME FOR APPEAL
Within ten (10) days after receipt of the decision of the Judicial Review Committee, either the member or the Board of Directors may request an appellate review by an Arbitrator or Arbitrators. A written request for such review shall be delivered or mailed to the Club manager and the other side in the hearing. Said request shall be delivered either in person, or by Certified or Registered Mail, return receipt requested. If a request for appellate review is not delivered or so mailed within such period, that action or recommendation shall thereupon become the final action of the Board of Directors.
2.9-2 GROUNDS FOR APPEAL
A written request for an appeal shall include an identification of the grounds for appeal, and a clear and concise statement of the facts in support of the appeal. The grounds for appeal from the hearing shall be substantial failure of any person to comply with the procedures required by the Bylaws or applicable law in the conduct of the hearing and the rendering of the decision so as to deny petitioner a fair hearing.
2.9-3 APPEAL PROCEDURE
The proceeding by the Arbitrator(s) shall be in the nature of an appellatehearing based upon the record of the hearing before the Judicial Review Committee, provided that the Arbitrator(s) may accept additional oral or written evidence, subject to a foundational showing that such evidence could not have been made available to the Judicial Review Committee in the exercise of reasonable diligence and subject to the same rights of cross examination or confrontation provided at the Judicial Review Committee hearing; or the Arbitrator(s) may remand the matter to the Judicial Review Committee for the taking of further evidence and for decision. Each party shall have the right to be represented by legal counsel or any other representative, who is a member in good standing of The High and Mighty Country Club, designated by the party in connection with the appeal, to present a written statement in support of his or her position on appeal and, in its sole discretion, the Arbitrator(s) may allow each party or representative to personally appear and make oral argument.
The order of oral argument shall be: first the appellant, second the respondent, and the appellant shall be allowed a short rebuttal. The Arbitrator(s) may thereupon conduct, at a time convenient to itself, deliberations outside the presence of the appellant and respondent and their representatives. The Arbitrator(s) shall give great weight to the Judicial Review Committee’s Decision and shall not act arbitrarily or capriciously. The Arbitrator(s) may, however, exercise its independent judgment in determining whether the petitioner was afforded a fair hearing, whether the Decision of the Judicial Review Committee was reasonable and warranted, and whether any Bylaw provision or House Rule(s) relied upon by the Judicial Review Committee was unreasonable or unwarranted. The decision shall specify the reasons for the action taken and shall provide findings of fact and conclusions articulating the connection between the evidence produced at the hearing and the appeal (if any) and the decision reached, if such findings and conclusions differ from those of the Judicial Review Committee. The Arbitrator’s decision shall be final. Neither the member nor The High and Mighty Country Club shall have a right to a jury trial.
2.9-4 RIGHT TO ONE HEARING
No member shall be entitled to more than one evidentiary hearing and one appellate review on any matter, which shall have been the subject of an adverse action or recommendation.
Bad No More:
Bad behavior happens. Conflicts arise. The Board believes the Bad Boy should be gone—and the Bad Boy believes he’s done no wrong. A difference of opinion. Needing resolution. Crying for a fair hearing.
The Community must be defended from The Bad Member—and The Members must be defended from The Bad Board.
Due process is a “must do” before suspension or expulsion.
The “Fair Hearing Plan” will do that—fair to the board, fair to the membership, fair to the member.
And it’ll hold up in a court of law.
Prepare for the next “Bad Boy Encounter”.
And enjoy the journey.
