Do the Process: A Legal Analysis of the NPC’s Removal Powers

Sam Natale🌹
Aug 24, 2017 · 15 min read

by Sam Natale🌹and Ramsin Canon

What follows is a response to Sean F. Monahan’s Medium post calling for caution and procedure, and arguing against the swift removal of Danny Fetonte from the NPC by a 2/3 vote. Sean’s analysis of the relevant DSA constitutional rules, though certainly in good faith, is neither sound nor well-researched. He stakes a confident position, arguing that the rules clearly indicate that the NPC cannot remove Fetonte. From this premise, he argues 1) removal (because it’s not within the rules) would be despotic and erode DSA’s democratic culture and 2) removal would constitute misconduct liable to result in a costly lawsuit. Sean elides an essentially political argument as a legalistic argument about precedent and the legal obligations of the DSA as formally constituted entity. Let a political argument be political; this article seeks to demarcate political arguments, over which reasonable people may disagree, from legalistic, procedural arguments, which are rooted in formality of the bylaws, statutes, and the common law.

Sean’s concerns are political, not in essence procedural or legal; the bylaws are flexible enough, and the applicable case law favorable enough, to undercut the confidence of Sean’s assertions. The rules as written, from a legal standpoint, allow the NPC to use its removal power in this situation. Sean’s concern about authoritarian drift is a political concern — and not a trivial one, but a political one nonetheless. Under the type of legal analysis that a court would conduct in reviewing this decision (if a lawsuit was brought at all), the DSA would likely prevail. And as the rules do allow for removal, the use of that power would not be inherently undemocratic. On the contrary; the decision on how to use such a flexible procedure, i.e., to remove or not to remove, is itself a political decision reflecting political concern. DSA’s democratic culture is arguably equally threatened by the choice to use internal processes one way versus another. What stifles democracy in left organizations is perfectionism, metrics, objectivity, worship of the written word over other forms of communication, and paternalism. The call to a “due process” rooted in these values is to be avoided.

I. An Analysis of the Rule

The rules governing the operation of the NPC are laid out in Article VIII of the DSA constitution. There are only 8 sections- a fairly bare-bones set of directives. One of these sections, Section 7, deals with removal. That rule says

“Section 7. An NPC member may be removed for malfeasance or nonfeasance by a two-thirds vote of the NPC, with nonfeasance defined to include unexcused absences from two or more consecutive meetings.”

The question is, “what is malfeasance?” Sean’s piece argues that “somebody has to deliberately do something very wrong in order to be justifiably kicked off the NPC. It’s a high bar. And it’s a high bar for a reason — it would be a pretty incredible power if the NPC could just expel one of its members whenever a ⅔ majority turned on someone. Malfeasance is a pretty narrow term, and we should want it to stay narrow.”

Sean cites to the dictionary definition of malfeasance, but this definition actually undercuts his argument. He notes that the dictionary definition is “wrongdoing or misconduct especially by a public official.” In its simplest form, it refers to any “wrongdoing or misconduct” by an official, not just the extreme offenses that he envisions. The plain text of the rule, and the word in context, undermines his claim that it refers to only extreme behavior. Absent direction in the bylaws themselves about how malfeasance is to be defined, the bare dictionary definition is sufficient, both logically and as a matter of law.

A) Plain meaning of “malfeasance” is just an intentional and wrongful act

Sean states that, of mis- mal- and non-feasance, malfeasance must be the most serious. However, these categories are not referring to seriousness, but requirements of intent. Me taking my roommate’s beer without permission is malfeasance, because the taking is intentional, not because it is terrible. By contrast, I could carelessly forget to turn off my stove, burning down an apartment building and killing everyone inside. That would be non-feasance, not because it’s less serious or reprehensible than taking a beer, but because the mens rea (mental state) was negligence or inaction in the face of a duty, not knowing intent.

Malfeasance, therefore, doesn’t mean “really bad act,” but simply an intentional wrong. If Danny Fetonte, for instance, intended, through his campaign literature, to hide or downplay his involvement with CLEAT, this would be malfeasance because it is 1) intentional and 2) was wrongful.

If the constitution wanted to specify a degree of wrongdoing, rather than just the intent required, they would have used “serious malfeasance,” or something to indicate that there was a threshold level of severity. The constitution doesn’t have that language, and so the plain meaning is that any intentional and wrong act would qualify.

B) Malfeasance as a grounds for removal is about as serious as missing two meetings

To determine whether there’s a “high bar” required to remove someone for malfeasance, we should also look at the word in context. Was removal supposed to be an “extreme” remedy as Sean argues? Or is it a tool to deal with a broader variety of toxic or unhelpful NPC members? The second half of the rule makes it clear that removal does not require extreme behavior.

Let’s look at the rule again:

“An NPC member may be removed for malfeasance or nonfeasance by a two-thirds vote of the NPC, with nonfeasance defined to include unexcused absences from two or more consecutive meetings.

There’s a second grounds for removal- missing two meetings in a row without an “excuse.” Two things are immediately clear from this rule. First, the term “unexcused absence” is undefined, which tells us that the NPC is intended to have some discretion in determining what absences were “excused.” This indicates the constitution was indicated to give them discretion in defining the “malfeasance” condition for removal as well.

Second, two unexcused absences from meetings is fairly minor misbehavior. Anyone on a working group will tell you, sometimes folks cancel or flake. In ordinary contexts, someone wouldn’t be likely to be kicked out of a WG for “unexcused absences.” But it would be grounds to be kicked off the NPC. This tells us that the standards of conduct for NPCs is higher than it is for members in other contexts. This constitution is not here to fuck around with someone who’s not pulling their weight. Removable behavior is not removable because it is deeply immoral, but because it is disruptive to the functionality of the organization.

In law, there is a rule of thumb for interpreting rules like this one. They say, a “word is known by its associates” (Noscitur a Sociis, if you want some unnecessary Latin). When a rule uses an ambiguous word, you should evaluate it in context of the other words in the same rule. Here, we’ve got one grounds of removal that’s arguably ambiguous (“malfeasance”) and one that’s crystal clear (“nonfeasance” = two unexcused absences). It wouldn’t make any sense if the bar was high to get kicked off for doing something intentionally wrong (malfeasance), but the bar was low for failing even unintentionally to show up for meetings. We can conclude from this context that the constitution intends for removal to be useable even when the wrongful conduct was not extreme.

C) Acts committed before holding office may be relevant to a malfeasance determination

Sean reads into the rule a requirement that the malfeasance be committed while someone was on the NPC. But there’s no support for this interpretation within the text and as a rule it is neither logical nor desirable. The problem is the vagueness, not narrowness of the rule; the solution is therefore to amend the rule at the soonest opportunity. From a procedural standpoint, one is reading language into a vague rule whether broadening or narrowing it. The chronology of malfeasant act is less germane, it would seem, than the relevance of the act to the position, which is more readily inferred from the bylaws as a whole.

In other words the broad term “malfeasance” encompassing any intentional, wrongful act is more readily limited by the question of relevance. Acts done within office are necessarily relevant, but that doesn’t mean that acts committed outside of office cannot be. If someone committed malfeasance in their attempt to become an NPC member, an interpretation of the rule that excluded this conduct would be arbitrary, not “fair” in some abstract sense. The “slippery slope” concern that this would open the door to an evaluation of an NPC member’s whole life is better addressed through a relevance, rather than chronological limitation. Most pre-NPC wrongful acts would simply not be relevant to the question of their fitness as an NPC member. However, malfeasance committed in the process of becoming an NPC member is clearly relevant. In both cases, the solution is to formally clarify the rule, not to impute to the rule language that is not there, due to the most desirable political outcome.

Sean’s article deals primarily with the alleged “malfeasance” of Fetonte’s work with CLEAT. There is a fascinating academic question as to whether or not DSA should take a stand against all police unions, and anyone materially supporting police unions. But that question is a distraction from more relevant grounds of “malfeasance.” In the course of this controversy, members have raised other instances of alleged misconduct. For instance, members have raised grounds for malfeasance which relate to alleged misconduct during the NPC campaign. Others have expressed anger at what they perceive as intentional misrepresentation of Fetonte’s record as an organizer. The Veteran’s Working Group laid out a succinct version of the charge in their statement: “We feel that Mr. Fetonte deliberately misled the delegation by referring to his time as an organizer with police union CLEAT by vaguely characterizing his background as “I organized state workers.”

On this alleged wrongdoing, the authors can’t take a definitive position, because we are not in possession of all the facts. It would be up to the NPC, in interpreting the rule, to decide what conduct is relevant. Our point is simply that the rules allow them to consider actions relating to the NPC election itself, or other relevant pre-convention misconduct, in making a claim of malfeasance.

II. Would the use of removal threaten DSA’s democracy?

Sean argues for caution in the use of the removal power until we can create more limited rules for how removal works. But there is no argument for simply waiting until 2019 to see Fetonte leave the NPC that does not equally apply to amending the constitution in 2019 to avoid a repeat of this problem and forestall authoritarian drift. Even if one agreed with Sean that it is not desirable for the NPC to have broad latitude in its removal powers, then the proper and democratic remedy for that is a vote to amend the rules to limit this power. Through the regular amendment process, we could debate, hear alternatives, and consider the consequences fully of stronger or looser rules for NPCs ability to govern itself. But it is undemocratic to limit the scope of a rule by interpretation that was written as broad and flexible, just because one would prefer that it not be so. The current scope of removal powers seemed sufficient, as it was written and voted on in the 2001 convention, to that body of delegates. It would be undemocratic to override those delegates now, and decide that they simply didn’t know what they were doing when they made the language of the rule broad and subject to discretion by the NPC.

Precedent in this context is a norm, not destiny; it is a defect in the organization’s procedure that has complicated this matter, and that defect can be remedied at the next convention just as well as the membership can vote Fetonte out. If we do intend to clarify and limit the scope of this power in 2019, then by definition, the interpretation of the rule as it is written today would not be binding on future NPCs, because they would be armed with an entirely different rule.

III. How would a court evaluate a lawsuit by Fetonte against DSA?

As it was raised by Sean’s piece, we are compelled to confront the question of how a court would evaluate a lawsuit by Fetonte. “[I]f we kick Danny off of the board without following our own constitution (which is the basis for our legal tax status as a 501c4 organization) — we also open DSA up to a lawsuit, something which could easily bankrupt and effectively destroy the organization.”

We really don’t want to answer this question, because although we are lawyers, we are not lawyers for DSA. This article is NOT legal advice. Litigation is often unpredictable, and full or risks that must be carefully considered. Sean is correct to say that litigation would best be avoided; as attorneys, please trust that nobody understands better the vicissitudes and vices of litigation. The law we cite may not be applicable in this case, as law varies across jurisdictions. We compiled it in our free time and this should not be relied upon by DSA or anyone else in making decisions about how to proceed. This analysis is not a substitute for competent legal counsel for DSA or any other interested party. The hiring of an attorney, or any other action should not be based on this article or the ideas within it.

A) The First Amendment Protects The Right of Organizations to Self-Govern

That said, there are reasons to believe that a legal claim by Fetonte against DSA would not succeed for very elemental reasons. The simple reason (for those who do not want to read the analysis below) is because the First Amendment deters courts from interfering with the internal management of membership associations, such that they will generally defer to an organization in interpreting the scope and application of its own rules, and will likely throw out any claim by a member relating to the irregularities surrounding those rules.

There is judicial guidance on the question of how a court would deal with a membership dispute within an entity like the DSA. For membership associations in particular, there is a significant body of jurisprudence because of the First Amendment’s right to and freedom of association. The First Amendment has been read by courts to imply a dormant or inverted right, i.e., to not associate. Thus in cases of membership associations, “Courts have been understandably reluctant to interfere with the internal affairs of membership associations and their reluctance has ordinarily promoted the health of society.”(1)

This is particularly true of membership associations that lack a professional or industrial nature (e.g., a bar association or labor union). In Trautwein v. Harbourt, the court dealt with an action for damages by plaintiffs who alleged that they were maliciously denied admission to membership in the Order of the Eastern Star, a fraternal organization of New Jersey. (2) In rejecting the plaintiffs’ claim for relief the court differentiated so-called “expulsion cases” and distinguished exclusion cases involving organizations “membership in which is an economic necessity” or “those which are repositories of civic, civil or political rights.” (3)

So, even under the heightened standard applied to “expulsion” cases (as opposed to “exclusion” cases), courts are reluctant to interfere with the internal decision-making of the organization; and this is more so the case where the organization is not one of “economic necessity” but one that centers primarily on “civic, civil, or political rights.” Add on top of this the fact that the Fetonte situation is not one of expulsion (or exclusion); nobody is being expelled, but rather is merely an instance of a particular individual being denied access to a leadership position. The situation is far beneath the notice of a competent court of law; a court is simply highly unlikely to intercede to issue an injunction requiring the DSA to seat a particular person in a particular leadership position.

B) “Due Process” is a context-dependent requirement for procedure, determined by the rules of the organization

This is an opportunity to touch on the meaning of the phrase “due process.” It is important that when formulating political arguments, we don’t fall back on folk understanding of law as a sword. As the words themselves suggest, due process simply means “the process that is due or owed.” It does not mean the process that is ideal or perfect. “Due” in the context of “due process” is rooted in the idea of “entitlement” — that is, what process is “due” or owed to the individual in question. Not surprisingly in our litigious country, the question of what process is “due” in membership associations that lack formal procedures has been litigated.

There is no support for the proposition that even an expulsion procedure undertaken by a membership association must comport precisely with constitutional due process guarantees. What a party is typically entitled to is a hearing that is “reasonable.” The accused must have notice of the charges, notice of the time and place of the hearing, and a full and fair opportunity to be present and present a defense. (4)It is enough if the procedures adopted are “fair and make for justice rather than for form,” rather than that there be precise adherence to the forms of legal procedure.(5) The reasoning in these and other cases is that requiring procedures equivalent to those necessary for trials (i.e., “ideal” process, rather than what is due) would convert expulsion hearings into full-fledged adversarial proceedings interfering with a private society’s “fundamental right to manage its own affairs.” (6) “It is important to note that the legal duties imposed on defendant organizations arise from the common law rather than from the Constitution as such…the ‘due process’ concept is applicable only in its broadest, nonconstitutional connotation…[courts] shall refrain from using ‘due process’ language and shall simply refer instead to a requirement of a ‘fair procedure.’” (7)

The case of Davenport v. Soc’y of the Cincinnati, cited above, is instructive because the court noted that even though it was loathe to involve itself in a membership dispute, it would not refrain to do so if things were patently unfair. So it provides a good primer on the substantive legal questions.

The court held that nonstock corporations (i.e., nonprofits and membership associations) have only those powers permitted by the nonstock corporation statutes, their certificates of incorporation, and their bylaws. Where a corporation acts ultra vires (in excess of these powers), those acts may be enjoined by a member. (8)Citing to a “reasonableness” requirement common to state nonprofit statutes, the court noted that “fair play” is required in expulsion cases. Membership of associations is required by statute to be governed by bylaws that are reasonable, in other words, and “bylaws reasonable on their face may not be unreasonably applied.” The statutory requirement of reasonable bylaws “requires a hearing that is meaningful and a sanction that is reasonable…” (9) The Davenport court (10)noted that “expulsion for an improper reason, as well as expulsion based on unfair procedures” is prohibited. (11)

At issue in Davenport? A provision in their bylaws that permitted expulsion of a member for “conduct inconsistent with a gentleman and a man of honor.” The member in question made a copy of a genealogical chart without permission. He was expelled after a hearing, and sued for reinstatement. Among his arguments were that the phrase “gentleman and man of honor” were too vague. The court disagreed; “While the term ‘conduct inconsistent with a gentleman and a man of honor’ sounds archaic and quaint to the modern ear, that does not mean the words are without meaning.” (12)The court looked at the broad dictionary definition, and historical uses of the phrase (including from Shakespeare). What’s more, the court rejected the plaintiff’s argument that the court should look to the Uniform Code of Military Justice or other statutes for guidance in interpreting the words “honorable” and “gentlemen”:

The plaintiff’s arguments are unpersuasive fundamentally because the language of [the Code] cannot be compared to the language of a bylaw applicable to a private organization; they operate in entirely different spheres, different legal frameworks, and have different purposes. (13)

The Davenport court went on to reject the plaintiff’s argument that the process was unfair. He’d been allowed to have a lawyer present (but not speak), was not permitted to object to evidence, and was denied the right to examine or cross-examine witnesses — all hallmarks of constitutional due process. (14) All that was “due” to the plaintiff were the bare requirements mentioned above: notice, presence, and a right to be heard (and present evidence). (15)

Absent a formal procedure written into the bylaws, an organization need only provide a “reasonable” process, and wide leverage is given to the organization’s interpretation of words used in their common dictionary sense.

Proceeding from the bedrock principle — that courts are reticent to meddle in the internal affairs of membership associations — and the bare requirements of “due process” in the legal sense, the reality is that any action to punish DSA for removing Fetonte from the NPC under the constitutional removal provision would face, to say the least, an uphill struggle.

IV. Conclusion

A reliance on “process” is no remedy for the essential anxiety of leadership: that one never has a guarantee they’ve made the right choice. No amount of process, or even the invention of new processes, can absolve the NPC from the risk that they act ambiguously. One is always subject to criticism.

Due process does not mean delay, or a reliance on mechanisms other than fallible human judgment to make decisions. It means relying on the NPC’s judgment when the organization’s democratic process has conferred that power. Sean’s analysis arguing the NPC is totally disempowered by the current rules has shut down the conversation in this area.

We argue that the NPC is indeed formally empowered to consider removal in this situation. What they do with this power is a political question. We await an answer.

Citations:

(1) Falcone v. Middlesex Cty. Med. Soc’y, 34 N.J. 582, 590, 170 A.2d 791, 796 (1961) (internal citations omitted).

(2) Trautwein v. Harbourt, 40 N.J. Super. 247, 59 A.L.R.2d 1274 (App. Div. 1956), certification denied, 22 N.J. 220 (1956).

(3)Falcone v. Middlesex Cty. Med. Soc’y, 170 A.2d 791, 796 (1961) (citing to Smith v. Allwright, 321 U.S. 649 (1944)).

(4) Gervasi v. Societa Giusippi Garibaldi, 96 Conn. 50, 56–58, (1921).

(5) Id.; see also Connelly v. Masonic Mutual Benefit Assn., 58 Conn. 552, 557, (1890).

(6)Davenport v. Soc’y of the Cincinnati, 46 Conn. Supp. 411, 441, 754 A.2d 225, 241 (1999).

(7) Pinsker v. Pacific Coast Society of Orthodontists, 12 Cal. 3d 541, 550, n.7 (1974) (emphasis added).

(8) Davenport at 432 (citing to Sterner v. Saugatuck Harbor Yacht Club, Inc.

(9) Id.

(10) Citing to Sterner

(11) Davenport, 46 Conn. Supp. 432–33 (1999)

(12) Id. at 434 (1999).

(13) Id. at 436 (1999).

(14) Id at 441.

(15) Id at 441.

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