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Expelling members.

When it comes to expulsion, above all be fair.

Do you have the right to expel or suspend a member who continually fails to pay dues? A member who no longer meets membership requirements defined in your association's bylaws? How about a member who willfully violates your association's code of ethics--despite a bylaw empowering the board of directors to vote to expel such offenders?

In each instance, the answer is yes. Legally, any association may both establish expulsion guidelines and expel or suspend a member for cause--even when the result may limit or eliminate competition. The guiding principle, is that the disciplinary measure must always be reasonable under the circumstances. Certainly an association may expel a member for serious misconduct such as dishonesty or an action that critically disrupts the organization's goals and purposes. Some associations, for example, automatically expel members convicted of felonies. On the other hand, members may not be expelled for holding a particular view or for being a member of a particular church or other society. (The exception is for religious or political groups themselves.)

Following expulsion rules

The process of expelling or suspending a member must conform to any existing association rules. If the association maintains expulsion guidelines, it must strictly adhere to them for two reasons: first, so that the expelled member cannot claim unfair treatment, and second, so that the association can develop a strong precedent for how expulsion procedures are to be followed. Without current expulsion guidelines, an association must at the very least follow fundamental due process: Before being expelled, a member must first receive

* a notice of intention to proceed;

* a recital of the charges or accusations;

* a fair, impartial hearing at which the member may respond to charges; and

* in most instances, notice of the right to appeal.

Notifying the member of right to counsel also is a good idea. To further ensure that it is following due process, the prudent association also makes sure its procedure is not externally influenced. In one case where a subcommittee of a committee that initiated charges against a member of a bar association handled the disciplinary hearing, judicial disapproval was voiced because of the possibility of external influence. The particular committee or body selected to hear the expulsion proceeding should avoid any other phase of the disciplinary procedure, including preliminary investigations or formulation of charges.

Building fairness into the expulsion or suspension procedure is critically important--an association and even its board may be liable if it fails to do so. Associations formed primarily for economic purposes must be particularly careful. In States Marine Lines, Inc. v. FMC, the court explained: "Groups that wield economic power or exist solely for economic purposes have almost uniformly been held to a higher standard of procedural formality and regularity than voluntary non-economic organizations."

Avoiding defamation

When moving to expel or suspend a member, an association's representatives may have to make unfavorable comments about the offending member during the hearings. For that reason, association executives worry about incurring liability for libel or slander (collectively referred to as defamation). Fortunately, during disciplinary hearings members of an organization enjoy a qualified privilege to make what otherwise might be defamatory remarks. This qualified privilege is based on the idea that members of an organization must be permitted to engage in full and unrestricted communication regarding matters of importance to the organization. The privilege also allows members to criticize others in the organization without fear of liability. Several requirements must be met before the privilege applies:

* Comments made must relate to a matter of importance to the organization--that is, wrong committed and for which expulsion or suspension is fitting.

* Remarks may not be made with actual malice--that is, actuated by some corrupt mode such as hatred, revenge, personal spite, ill will, or desire to injure, or with knowledge of the falsity of the remarks or with reckless disregard for their truth or falsity.

* Comments must be made, or if in writing distributed, only to those with legitimate interest--that is, those considering the expulsion or suspension.

In one case, ASPELL v. Contract Bridge League of Memphis, a member was suspended for misappropriation of funds. The minutes of the meeting at which she was suspended were distributed to local units of the chapter of which she was a member and to executives of both the regional and national organization's magazine, which is distributed to all members. The court found that a qualified privilege applied because the matter was of importance to the association and only those with legitimate interests were notified.

Expelling a member is an unfortunate but sometimes necessary aspect of association management. With a legitimate reason and a fair process, it is perfectly acceptable.

George D. Webster is general counsel to ASAE and a partner in Webster, Chamberlain & Bean, a Washington, D.C., law firm.
COPYRIGHT 1992 American Society of Association Executives
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Title Annotation:legal
Author:Webster, George D.
Publication:Association Management
Date:Dec 1, 1992
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