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Member Care
Confidentiality of Disciplinary Actions
Law Office of Stephen G. Roche MEMORANDUM
Section 3.5 of the IBBA By-Laws provides that the President/Chair may convene meetings in “executive or closed session.” Said Section 3.5 also provides “No Members will be allowed to attend” such meetings. Section 3.8 of the By-Laws allows the Board to vote to take appropriate action disciplinary action where a member has engaged in “conduct injurious to the organization or its purpose.” While the By-Laws do not contain specific language regarding the release of records of disciplinary actions by the IBBA Board, the fact that members are barred from attending “executive” or “closed” meetings implies that records from such meetings should also be “closed”. To do otherwise would defeat the purpose for the restriction on rank and file members attending closed sessions. Section 3.10 of the By-Laws states that members or their attorneys have the right to make a “written demand under oath” to inspect the IBBA’s records during usual business hours; access shall be provided to “the Corporation’s list of members and other books and records…” Section 3.10 further provides that access shall only be granted for a “proper purpose” and defines “proper purpose” as “a purpose reasonable related to such person’s interest as a Member.” Note that Section 3.10 limits access to IBBA records to members and does not contain any broad authorization for the release of IBBA records or information to non-members and the general public.
* Defamation – this means that you injure someone’s reputation by word (slander) or in writing (libel). The IBBA’s posting of disciplinary actions on its website or otherwise could subject the IBBA to legal action by one offended by such action. While truth is a defense in defamation cases, the IBBA and its Directors would be in a position of incurring significant legal costs for defending their actions. * Invasion of Privacy – Given that the IBBA is a private entity, it is assumed that its records are private. The IBBA By-Laws reinforce this assumption in Section 3.10 wherein a formal process is established for the release of information and the information to be released is limited to the requestor’s interest as a IBBA member. The release of disciplinary records could violate an IBBA member’s expectation of privacy and subject the IBBA to litigation. As stated during our most recent telephone conversation on these matters, the unfortunate reality today is that anyone can easily sue for a perceived injury to their interests. In order to defend such actions, one must incur significant legal costs. While Section 4.19 of the By-Laws provides that Directors “shall not be personally liable for the debts, liabilities, or other obligations of the Corporation,” the fact is that the IBBA would be forced to expend monies to defend its actions if sued. Also, Directors would have to advance personal funds to defend such actions and would then seek to be indemnified by the IBBA as permitted by Section 4.20 of the By-Laws.
As an entity operating in the public and government arenas, the IBBA should be constantly diligent in protecting the good reputation of the organization and its members. I am concerned about how government agencies, educators, and other organizations would perceive your organization if disciplinary actions were posted on the IBBA website. I don’t believe that other organizations similar to the IBBA publicize disciplinary actions; in fact, I believe that they would go to great lengths to keep such information confidential. I am also concerned that organizations such as the NABA and other detractors would seek to use such information to embarrass and otherwise injure the IBBA.
For the reasons outlined above, I want to reiterate my recommendation that the IBBA not publish disciplinary actions on its website or otherwise. To do so may violate the provisions of the IBBA By-Laws and expose the IBBA to significant legal and political risks. |
