Volume CX, No. 4April, 2010
The following resolution has been submitted for the June 2010 membership meeting.
WHEREAS, The current version of Local 802 Bylaw found at Article V. Section 7. Charges Against Officers, has been the subject of considerable controversy within Local 802; and
WHEREAS, Said Bylaw was passed in 1985, yet never published in any edition of the Local 802 Bylaws since then; and
WHEREAS, Significant legal objections were raised at the time of its passage in1985; and
WHEREAS, Such objections included possible conflict with the Constitution and Bylaws of The American Federation of Musicians, the provisions of the Labor Management Reporting and Disclosure Act, and inconsitency with relevant case law pertaining to the Labor Management Reporting and Disclosure Act; and
WHEREAS, Said Bylaw was unknown to the Local 802 Membership until its discovery in 2009; and
WHEREAS, When charges are filed against officers of this Local who have been duly elected by the membership, those charges should be heard and decided by the Local’s members rather than by an outside arbitrator; and
WHEREAS, Local 802 seeks internal consistency in its own Bylaws, consistency with the Bylaws of The American Federation of Musicians, conformity with applicable Federal and State Statutes, and adherence to general principles of due process and adjudicative fairness to all Local 802 Members; then
HEREBY IT BE RESOLVED,
That the Local 802 Bylaw, found at Article V. Section 7. Charges Against Officers.,
BE AMENDED, as follows:
Section 7. Charges Against Officers.
(a) Officers of the Local (including Executive Board and Trial Board members) shall be fully amenable for violations of the Constitution and Bylaws of this Local or those
that of the American Federation of Musicians, in the same manner as any other member. While charge(s) under this Section are pending the accused shall continue to function in his/her/their elected capacities.
(b) No officer shall be subject to charges because of any order, ruling or official action he or she may have taken from which an appeal is available under these Bylaws or the Constitution and Bylaws of the American Federation of Musicians, such appeals to include appeal to the International Executive Board of the AFM or to the AFM convention, if applicable.
(c) Nothing herein contained shall exempt any officer from charges of malfeasance, such exemption being expressly limited to official actions from which appeal is available and malfeasance is not explicitly charged.
(d) Malfeasance shall be defined as
gross intentional an Officer’s dereliction of his/her duties duty as related to a or deliberate an Officer’s violation of any provision of the Constitution and Bylaws of Local 802 which that causes harm to any member of the Local or to Local 802 itself.
(e) No charges against any officer of this Local for his or her actions or conduct as an officer can be heard by the Trial Board or the Executive Board, such officers being answerable to the Local, subject to the right of appeal the American Federation of Musicians, as outlined below. Neither the Executive Board nor the Trial Board shall take any action to dismiss charges against officers on any grounds, nor shall either body undertake a procedural review of any charges filed under this Section. Such charges shall be processed in accordance with this Section.
(f) Charges against officers must be in writing and filed with the
Secretary Recording Vice President within sixty (60) days of the time the complainant first became aware, or reasonably should have been aware, of the alleged offense(s). The charges shall contain the same information required by Section I of this Article. The Secretary Recording Vice President shall serve said charges upon the accused within seven (7) business days after receipt thereof. The Secretary Recording Vice President shall schedule a membership meeting to hear the charges at the earliest possible date for which notice of the meeting can be published in the Official Journal publish in the next possible issue of the Official Journal a notice to the membership that charges against officers shall be considered at the next membership meeting to be convened at least thirty (30) days following publication of the notice.
(g) Charges against officers shall be the first order of business at said membership meeting, unless the meeting is a Bylaw meeting, in which case said charges shall be considered upon conclusion of consideration of the resolutions submitted therefor. However, the members present may vote to place the charges first on the agenda.
Upon loss of the quorum required for the Bylaw meeting, if a quorum sufficient for a regular membership meeting is found to be present, the meeting shall reconvene as a regular meeting and the charges against officers shall be considered.
(h) Any charges against officers placed on the agenda of a membership meeting shall first be read at such meeting by the complainant or by another member whom the complainant has designated as his or her representative. After the complainant’s presentation, a motion may be accepted to dismiss the charge on grounds that the allegation of malfeasance is vague or poorly defined, or that the alleged act is too trivial to warrant charges, or that the alleged act is not, in fact, malfeasance or that no evidence exists to support the charge. In the
latter last case the plaintiff may defend his/her charge by indicating to the meeting the type of evidence (i.e. documents, witnesses or other) upon which the charge is based. In no case, however, shall the meeting be asked to decide questions of fact. The names of witnesses and contents of documents shall not be disclosed. If the meeting decides by majority vote to dismiss the charge, then the matter shall be deemed resolved and the charge may not be resubmitted.
(i) If the charges are not dismissed by the meeting then
they shall be referred to an arbitrator from the American Arbitration Association for hearing. a committee the presiding officer shall call for the nomination of members in good standing for election to a Trial Committee of seven (7) members which shall hear the charges. Election of the Trial Committee shall be by secret ballot at the same meeting at which the nominations are made unless the quorum is lost in which case a continuation meeting shall be scheduled for that purpose at the earliest possible time. In the event that a duly elected member of the Trial Committee resigns or is otherwise unable to serve on the Trial Committee, the candidate, if any, who has received the highest number of votes for election to the Committee shall serve as a replacement. If no such replacement is available, the Trial Committee shall elect a replacement by majority vote. No officer of the Local or any complainant or witness for or against the accused shall be eligible to make or receive a nomination for, or to serve on, such Trial Committee.
(j) It shall be a violation of these Bylaws for a member to misrepresent the evidence that is claimed to be the basis for charges against any member. If
the charge is referred to an arbitrator after a representation is made by the plaintiff that certain evidence is in his or her possession and/or witnesses exist to corroborate the charge, and the arbitrator it is subsequently finds found that this representation was false and such evidence did not in fact exist, then the plaintiff shall be deemed in violation of this Bylaw and shall be subject to charges.
(k) The arbitrator shall be chosen in accordance with the rules of the American Arbitration Association. The arbitrator shall determine the rules of the hearings.
(k) The Trial Committee shall conduct a procedural review of the charges before it. A charge shall be considered improper and shall not be processed if it is found by the Trial Committee that:
1. the charge(s) does/do not state the exact nature of the alleged offense;
2. the charge(s) is/are untimely; or
3. the charge(s) involve(s) a question which should be decided by a judicial or administrative body outside the Local.
(l) If the
arbitrator Trial Committee, after due deliberation, finds the defendant to be innocent of the charges, or that the charges are too trivial to warrant further action dismisses the charges under (k) above, then this verdict will become final with the delivery of his/her its report to the Secretary of this Local Recording Vice President. which Such verdict shall be published in the next appearing Official Journal. No further action may be taken. Additionally, such verdict of innocence shall be read at the next membership meeting following the Trial Committee’s decision. The charging party shall have the right toappeal such finding to the International Executive Board.
(m) If the
arbitrator Trial Committee finds the defendant guilty, then its his/her report shall be read at the next membership meeting to convene following the delivery of the its arbitrator’s verdict to the Local Recording Vice President and to the accused. If a special membership meeting can be scheduled on an earlier date with at least 30 days notice in the Official Journal, such a meeting shall be scheduled by the Recording Vice-President. This report may reflect the degree of guilt and questions of malice and/or intent. However, a verdict of guilt may become effective only upon approval by a two-thirds (2/3) secret ballot vote of the members voting at the membership meeting. If such verdict is not approved by two-thirds (2/3) vote, the accused shall stand acquitted charges shall be dismissed and no further action may be taken.
If the Trial Committee finds the defendant guilty, it shall also recommend one of the following penalties:
(2) Removal from office and ineligibility to hold elected or appointed office for a period of two (2) years.
(3) Removal from office and ineligibility to hold elected or appointed office for a period of five (5) years.
(4) Removal from office, termination of membership for a specified period, and ineligibility to hold elected or appointed office in the Local in the future.
(5) Removal from office, expulsion from membership and ineligibility for any future readmission to membership.
(n) If the membership approves the verdict of guilt (including the recommended penalty), then such verdict and penalty shall be deemed final, subject only to appeal to the AFM
.. then it shall decide upon the penalty which may be one of the following:
(o) The accused, if found guilty, shall have the right to appeal the
procedure and substance or result of the procedures set forth in this Section decision to the International Executive Board of the American Federation of Musicians in accordance both with its Constitution and Bylaws and Article V herein. If the penalty being appealed provides for removal from office, then the officer shall be suspended without pay pending the outcome of the appeal. If a suspended officer is subsequently acquitted by the International Executive Board, then he/she shall be reinstated and reimbursed for all wages withheld by the Local during the period of suspension.
Gail Kruvand, Local 802 Executive Board
Thomas Olcott, Local 802 Executive Board
Jack Gale, Local 802 Member