The August '96 InterLoc includes three references to Mensa's disciplinary and dispute resolution structure and procedures:
- Brad Seidel's request for input to the Responsibility and Accountability Committee [R&AComm] (p. 6).
- Dr. Michael H. Jacobson's motion recorded in the AMC Draft Minutes for July 5, item 15, to make major amendments to the Bylaws concerning the Hearings Committee [HCom] (p. 50).
- Ralph G. Rudolph's complaint about the unresponsiveness of HCom (p. 63).
Perhaps it's time for some history (so we don't repeat past mistakes) and for reviving some old, unconsidered proposals (so we don't reinvent the wheel). My qualifications for being taken seriously include deep involvement with the drafting of earlier bylaws and chairmanship of the HCom under its first major revision, ironically contrary to my own recommendations.
HISTORY
The Ombudsman
Inevitably, there arises tension between an administration or bureaucracy and its clients; the interests and power relationships are not, generally, equivalent. Such was the case in the early days of Mensa, and the society needed mechanisms for coping. Frank E.G. Weil, Esq., and a few others proposed the adoption of a Swedish invention, the ombudsman, as part of Mensa's administrative apparatus.
An ombudsman is not a judge but an administrative officer. He or she is charged with investigating citizens' complaints and recommending corrective action when he/she reasonably finds cause. The ombudsman cannot order any action because he/she is not responsible for the consequences of that action, unlike the elected officers or the officers appointed to executive functions. The ombudsman is not a legal authority either, nor does he/she have disciplinary powers. But the ombudsman is not a toothless tiger. Specifically, the Bylaws gave the ombudsman the power to publish findings and recommendations in any Mensa publication deemed appropriate to the case at hand. The principle underlying this arrangement was that it was for the members to choose their own government through political process but it was essential that this process be based on full disclosure and that the "politicians" not be able to limit disclosure or paint false pictures for the electorate without independent criticism.
Since we were creating a new office, it was thought that it might be useful to extend its function to other situations, keeping in mind that different functions should not be confused. Thus, the ombudsman was given powers to act as mediator or arbitrator when the parties desired him/her to do so. We thereby made available the structure of a more general dispute resolution mechanism when needed. It should be understood that this second function went beyond the classical role of the ombudsman but still did not create a (quasi-) judicial office with mandatory jurisdiction.
The quality of ombudsman performance in Mensa has been variable. At one extreme, there have been ombudsmen who have issued opinions to promote their own political ends, ignoring evidence and making summary decisions without laying out a factual and principled basis. The selection of suitable ombudsman is a critical issue.
The Hearings Committee
If a member does something that harms the society, it requires some protective procedure that prevents further harm but is fair to the parties involved. The original HCom provisions arose from actual cases. The assignment of responsibilities was based on the existence in the Bylaws of an appointed membership officer (an AMC member), having administrative functions. The sole cause for bringing charges against a member was “acts inimical to the society,” deliberately non-specific since it is not possible to prescribe all manners of mischief. It required actual harm or a near-certainty of harm (not mere speculative consequences) to justify the effort and expense of bringing charges.
The membership officer's duty, when charges were brought, was to convene an ad hoc hearings committee composed of members not associated with AMC. The membership officer took no part in the hearings beyond making administrative arrangements. This distance between AMC and the original hearing was deemed necessary to prevent this quasi-judicial process from turning into an administrative Star Chamber. The AMC's function was only appeal, review, mitigation, and ratification of the HCom's decision.
About 1981, as part of a series of actions moving toward a more totalitarian structure of Mensa, the Bylaws were amended to create a permanent HCom consisting of the three AMC Chairs preceding the Second Past Chairman (who was, and is, a member of AMC). I objected to this provision at the time on several grounds, including:
- There is no way of assuring that a past chairman, a political-type person, has the judicial temperament necessary for conducting a quasi-judicial hearing.
- Past chairmen have a way of disappearing once out of office, either out of disgust or for a well-earned rest.
- The opportunity for too much coziness between a past chairman and a sitting AMC would taint, at least, the appearance of independent judgment.
There were other reasons as well.
Nevertheless, my arguments were ignored (not considered and rejected for cause), and as a result I found myself the first permanent (i.e., not ad hoc) HCom chairman. I distinguished myself by avoiding having any hearings for four years, settling issues by other means.
Dispute Resolution
Around 1980 I wrote a report for AMC about the revision of Mensa's dispute resolution procedures. The underlying model was based on a three-party universe: A - members as individuals, B - members acting as trustees for the society (essentially, elected and appointed officers), and C - the society as a corporate whole. (The report was ignored.) The analysis of this situation led me to the following recommended structure.
- A v. B Invokes the classical ombudsman's functions.
- A v. C Cannot be handled within the Society and must be taken, if necessary, to outside arbitration or the public courts.
- B v. A Trustees should not make complaints against their beneficiaries because the beneficiaries' interests are paramount in that relationship. When this kind of dispute arises it must be handled, if it meets other requirements, as an A v. A or a C v. A dispute.
- B v. C Is essentially a political matter and must be dealt with by political processes such as elections and referenda or by internal procedures within AMC or other functional committees.
- C v. A This is a case for HCom. Because of the drastic sanctions and broad quasi-judicial powers available to HCom and the possibility of abuse for political or private purposes, there should be -- among other standards -- a high threshold of access to this procedure. The standard of “acts inimical to the society” should exclude political differences and acts that do not produce actual harm or a very high likelihood of harm.
- A v. A This kind of dispute was handled by the voluntary mediation and arbitration powers of the ombudsman. I felt (and still do) that we should explore the separation of the two ombudsman's functions and create a separate procedure for this kind of dispute. It would unburden the ombudsman of small disputes and make clear that the ombudsman's principal business is with A v. B cases. I would encourage local groups and regions to develop their own dispute resolution procedures for this kind of dispute and dispose of such cases as closely to the parties as can be.
Creativity is called for. In one case, a local group had to deal with an obnoxious member (a not-uncommon problem), and brought charges to HCom. I recommended in such cases that the group convene an ad hoc “frowning committee” to convey to the offender the nature of the problems he/she was causing and to suggest alternative behavior; only when such efforts fail should a more formal procedure be used. In any case, it was not appropriate to engage a national HCom, with its far-from-negligible expenses, to deal with a problem of local scope.
RECOMMENDATIONS
Regarding the Responsibility and Accountability Committee:
You'll find a lot of material above that bears on the issues in Brad Seidel's request for comments and suggestions. Among other things, I would attend to:
- Clarifying the ombudsman's functions and setting up separate procedures for A v. A disputes.
- Getting rid of automatic creation of a permanent HCom from ex-AMC members. See below for suggestions for Bylaws changes.
- Avoiding excessive prescription of what “acts inimical to the society” consist. One understands the theory that one must pronounce the law to put potential offenders on notice, but it is neither theoretically nor practically possible to do so completely. Meaning depends on context, and context cannot be anticipated. If one tries to cover all bases beforehand, one obscures understandable notice among a morass of verbiage. The more detail one specifies the stronger the implication that anything not spelled out is acceptable and the more loopholes one leaves for creative miscreants.
- For models of quasi-judicial rules, I would look to the maxims of equitable jurisprudence and to the common law tradition rather than to statutory codification.
Regarding Dr. Jacobson's motion:
The good part of the proposed Bylaws amendment is the removal of the automatic designation of HCom membership. Instead, I would create a post of Disputes Officer [DispO] (or revive the HCom convening function of the Membership Officer). One of DispO's duties would be to receive charges of “acts inimical” and decide whether they reach the threshold of national concern. If they do, DispO would convene an ad hoc HCom from among a panel of members who are qualified and willing to serve. At this stage, I would not be overly specific but allow the DispO to propose his/her own guidelines. If necessary, such guidelines could be adopted more formally when they have been tested in practice.
I would not confuse the ombudsman's functions with other dispute and disciplinary functions. On the contrary, I would limit the national ombudsman to the classical A v. B situation and to the supervision and appeal function with respect to local and regional ombudsmen. The use of the ombudsman as a voluntary mediator or arbitrator might be continued until other arrangements are in place, but there should be strict avoidance of involvement in matters that belong to HCom. The functions of ombudsman and DispO should be clearly distinguished. The provision for regional (and, I would add, local-) ombudsmen is excellent.
I would not put forward the draft on pp. 50-56 of the August InterLoc in its present form since it confounds the functions of ombudsman and HCom.
Regarding Ralph Rudolph's comments:
Ralph brought his charges against Dick Amyx for violation of Bylaws and AMC ASIEs in the wrong forum. His is a case of A v. B, appropriate to the ombudsman, not HCom. This is not to say that HCom members Felt and Shaugnessy were right to have promised a response and not delivered when they could have promptly directed him to the ombudsman.
The ombudsman is charged specifically with correcting improper administrative behavior. Such behavior, in itself, is not an “act inimical to Mensa” unless one can demonstrate an actual inimical effect. That is not to say that it is all right to ignore rules, but rules are only words and subject to interpretation and application in different contexts. Were every questionable administrative act (or neglect) subject to HCom review as an “act inimical,” a mischief- maker could easily tie up all government. That’s exactly why we have an ombudsman and why the two functions should be kept well-distinguished.
The Case of Judy Dosse, an egregious example of abuse of the Hearings Committee process.
Acts Inimical Memo, An attempt to forestall AMC's confounding of administration with law.
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Created: 05 Oct 96
Revised: 26 Mar 03