This is a message to members about complaints submitted to the national executive council (NEC) regarding the 2018 annual general meeting (AGM). It is a follow-up to the previous note to members: in that note, the human resources committee discussed the independent investigator’s findings. The investigator concluded that “the first complaint against the member was not made out based on the facts and information provided.” He concluded that “the member had not breached confidentiality and that the member’s comments did not meet Editors Canada’s criteria for harassment.”
The wording in this message
Some of the wording in this message is vague. And some details have been left out. It’s written this way because filing a misconduct complaint against a member automatically triggers the privacy aspect of that complaint, as noted in our bylaw:
2.05.5 Privacy
Resolving a misconduct complaint may require the disclosure of sensitive material. The Association will attempt to ensure that confidentiality is maintained except where disclosure is necessary for the purpose of investigating and resolving the complaint.
The investigator’s reports are also confidential. Although the person who is the focus of the complaint may waive their right to confidentiality, that did not happen in this case. That member said we could send the information in this message to members, as the complainants had asked us to do so, but the member did not waive any other privacy.
Giving certain details here or anywhere else will identify the people involved. That would be unfair to anyone who does not wish to be identified and, indeed, to any member who felt the need to approach the association’s directors about difficult topics or to file a serious complaint. Members have to know that the directors of their organization will be discreet and fair, and will follow the written rules.
The people who submitted the letters of complaint have asked that we inform members of their wish to have us deal with the complaints. We are doing that as fully as we can here, while still respecting the confidentiality constraints of the bylaw.
Please keep all of that in mind if, as you read this, you feel that you are not getting the whole story – you are not getting the whole story and, indeed, we cannot provide all the details. Or if you find yourself bewildered by all of this. Or upset by the subsequent finding and what the national executive decided to do about it. This was a complicated situation and it is difficult to understand without knowing all the facts – which we are bound to not give, by our bylaw.
If you hear any details about the investigator’s reports, beyond what we are telling you here, then someone is talking about confidential information that they are not supposed to disclose.
Why was there a second investigation?
As you may recall, the association’s executive director (ED) hired an external investigator to look into the AGM complaints. The investigator specializes in workplace conflict and harassment.
The ED and the national executive council (NEC) thought that the investigator had considered all of the items the ED submitted, including two complaint letters submitted by members.
The two letters asked for the member to be found guilty of misconduct under the bylaw for “demeaning, belittling and causing personal humiliation and embarrassment to the member.” There was a second item the writers of the complaint letters asked for, which we cannot discuss here, because it would easily reveal the person’s identity.
The bylaw allows for the following approach: “Where more than one complaint is received for alleged misconduct by a member, the subcommittee may consider the complaints concurrently.” And that is what we thought was done.
After we sent the previous email to members, both sets of complainants wrote to the NEC to say that their concern about misconduct and the second item had not been addressed. So we went back to the investigator.
The conclusion of the second investigation
The investigator concluded that the member was guilty of misconduct under the bylaw because the people the investigator interviewed all had similar recollections of how honorary life membership motions are handled at AGMs. The investigator said the member was guilty of misconduct because
- the member knew, or ought to have known, that such motions are generally passed at an AGM with no discussion, and
- debating an honorary life membership motion is out of step with past practice at AGMs and goes against the spirit of this kind of acknowledgement.
Robert’s Rules of Order
Robert’s Rules of Order are the rules that Editors Canada uses to govern meetings of members (see our bylaw, 3.09: Conduct of Members’ Meetings), along with the governance documents mentioned above.
When the NEC began discussing the findings of the second investigation, and what the next steps should be, one of the directors noted the following point in Robert’s Rules of Order, Newly Revised, In Brief (p. 87):
“No matter how long established a custom is, however, it can never conflict with a written rule—and if the conflict is pointed out, the written rule must be followed unless it is amended to incorporate the custom.”
The complete version of Robert’s Rules of Order (11th ed., p. 19) says this:
“In some organizations, a particular practice may sometimes come to be followed as a matter of established custom so that it is treated practically as if it were prescribed by a rule. If there is no contrary provision in the parliamentary authority or written rules of the organization, the established custom should be adhered to unless the assembly, by a majority vote, agrees in a particular instance to do otherwise. However, if a customary practice is or becomes in conflict with the parliamentary authority or any written rule, and a Point of Order (23) citing the conflict is raised at any time, the custom falls to the ground, and the conflicting provision in the parliamentary authority or written rule must thereafter be complied with. If it is then desired to follow the former practice, a special rule of order (or, in appropriate circumstances, a standing rule or a bylaw provision) can be added or amended to incorporate it.”
Another director called a point of order on this, noting that the custom of not allowing debate on an honorary life membership is not in line with written rules about motions and votes.
Robert’s Rules also states:
- A main motion or question is debatable, as is a ratification (Table of Rules Relating to Motions, pp. 6–7).
- Motions on endorsing or voting are not listed in the table of Motions and Parliamentary Steps Which Are Not Debatable and Not Amendable (pp. 42–43).
The NEC’s conclusion
Given that the findings of the independent investigator contradict Robert’s Rules of Order, and a director called a point of order on this issue, the NEC discussed the contradiction, sought advice on the matter, and discussed the ramifications of the contradiction. The ED also tried to engage with several mediators, none of whom were able to help with this particular situation.
We all want a healthy association where members are treated with respect. The NEC spent many hours seriously examining and discussing the concerns expressed by the two sets of complainants, always returning to our governance documents for guidance.
In the end, the NEC could find no grounds on which to discipline the member. Disciplining the member with no basis in parliamentary procedure could have ramifications for any member who wants to discuss a motion at a meeting of members in the future.
Why did this take so long?
The NEC has to look at all aspects of a given situation, from several different angles, and make a decision that is based on all the relevant facts and is in line with all of the association’s governance documents and procedures. In this case, a lot of discussion has been needed, and it has taken us a long time to get to this decision.
When the point of order was raised, the NEC did several things to try to figure out the best way to resolve this matter. We talked by email. We talked about it at the November 2018 in-person meeting. We talked to several experts: we talked to mediators to see if we could resolve the two contradictory issues and to people who use Robert’s Rules often in their work. A lot was at stake, so we wanted to be sure we covered everything.
We also spent a few weeks in November and December writing a letter to one of the affected parties. This took time because the members of the NEC wanted to come to a place where we were all in agreement with what we were sending. When it was ready, it was the week before Christmas. We chose not to send it then, so that it did not affect the recipient’s holidays. We sent the letter early in the new year. Some email discussion followed, then the human resources committee spent time writing this message and having it translated.
Some people will see this as the NEC stalling or dragging its heels. That was not the case. We worked on this almost every week after getting the second report, and we had to wait for some things to happen before others could start. It was always our goal to resolve this matter to the best of our ability as soon as we could. Given its complexity, it took much longer than we expected. We hope that members will look at the NEC’s record of work overall (this year’s directors, as well as last year’s) and see that there is no pattern of stalling on any task we’ve been required to do.
Next steps
We definitely made some mistakes along the way, from before the AGM through to now. We should not have let this discussion get to the AGM: we should have gone back to the nominators a second time to ask them again to withdraw the nomination. We are sorry for how we handled the nomination, and we have apologized in writing to the person most affected by this.
We also should have made sure the investigator took Robert’s Rules of Order into account. If we’d done that, we would not have been in the difficult position of trying to decide what to do when it became obvious that the findings of the second investigation contradicted the rules for running our meetings.
We are doing what we can to make sure that members (and future directors) never find themselves in this situation again. To address some serious gaps in the honorary life membership procedures, we are forming a task force that includes a range of voices and perspectives to study this matter and present a proposal for improving our practices. The task force will consult members to gather input and to review the process it proposes, and members will vote on the final proposed version when it is ready.
Sincerely,
The human resources committee
on behalf of the national executive council
Gael Spivak
president
Heather Buzila
vice-president
Julia Cochrane
treasurer
Anne Louise Mahoney
past president