AALL typically posts the agenda of the next Board Meeting within a week of the Meeting. Our Caucus therefore has only just learned about proposed Guidelines for Caucus formation, governance, and dissolution. We make several recommendations for changes, including adoption of a Guideline on Board transparency and accountability. The Caucus will submit this comment to Board members before they meet on March 29th. If they need more time to consider our proposals, we ask that they defer action on the Guidelines until their next Business Meeting.
Comment of Consumer Advocacy Caucus on Proposed Dissolution Guideline For Caucuses
March 26, 2012
The AALL Caucus Formation Executive Board Special Committee (“the Committee”) has prepared a final report on guidelines for the formation and governance of AALL Caucuses. (Tab 22, Spring 2012 Board Meeting, available here) The Committee recommends that the Board adopt its proposed Caucus Guidelines at its Spring Meeting next week.
The highlighted language of one Caucus Guideline invites troubling questions about discriminatory treatment of Caucuses, because it incurs significant risk of a chilling effect on professional speech by Caucus members, without commensurate benefit to the Association. (Professional speech includes not just statements, but also other forms of expressive conduct.) The “Dissolution Guideline” therefore warrants revision:
Voluntary dissolution of a Caucus shall be by petition signed by a simple majority of caucus members registered on the caucus community on AALLNET as of the date of petition signature and submitted to the Executive Board. The Executive Board reserves the right to dissolve a caucus in consultation with the caucus leadership if the Executive Board determines that the actions of the caucus jeopardize the filing status of the Association or subject the Association to potential liability or for continued failure to abide by Association Policies.
This proposal raises at least three related problems for Caucus speech within AALL. First, members of a Caucus – or any other type of AALL entity – may engage in professional speech without knowing, or having any reason to expect, that it will “jeopardize the filing status of the Association or subject the Association to potential liability.” A reasonable protection of professional speech should include at least notice to the Caucus of Board objections and a meaningful opportunity to comply with Board guidance.
Second, the Committee has not explained why Caucuses need a policy that applies to no other type of AALL entity. In fact, given steep constraints on time and resources, Caucuses are less likely than other AALL entities to take actions that the Board finds contrary to AALL’s interests. So singling them out all but announces to Caucuses that their actions require heightened monitoring and supervision. This disparate treatment will have a chilling effect on professional speech of Caucus members.
Third, no AALL entity can take official actions on behalf of AALL: the “Speaking For AALL” Policy limits official representation of AALL to the President and the Executive Director. Therefore, the President and Executive Director may (and should!) disavow Association responsibility for any action by an AALL entity that they find contrary to the Association’s interests. Recourse by a public disclaimer may be a low, if unwelcome, risk for the Association, but it represents a better alternative than a threat by policy to dissolve the offending Caucus. Threatening to dissolve a Caucus for unwanted speech or conduct creates the appearance of a draconian solution for an imaginary problem. The proposal does not reflect well on an Association that champions freedom of speech.
Under these circumstances, our Caucus reiterates a concern it previously shared with the Committee. AALL should not adopt a policy that, by singling out Caucuses for undefined, prohibited speech, may deter AALL members from “forming caucuses or from pursuing caucus interests even in ways AALL would approve.” Fortunately, our concern has a simple remedy, suggested by the highlighted language of the proposed Guideline on Governance:
Guideline VI. Governance
Each Caucus shall be encouraged but not required to adopt a structure, such as Bylaws, for its own governance. Any governance structure adopted shall not be in conflict with the Bylaws or Policies of the Association. When the Executive Board determines that a Caucus governance structure or bylaw is in conflict with the Bylaws or policies of the Association, the Caucus shall be directed by the Caucus liaison to remedy said conflict in accordance with the recommendation of the Executive board.
We urge the Board to adopt this revised version of the Dissolution Guideline to bring its language into conformity with the Governance provision:
Revised Guideline XI. Dissolution
Voluntary dissolution of a Caucus shall be by petition signed by a simple majority of caucus members registered on the caucus community on AALLNET as of the date of petition signature and submitted to the Executive Board. When the Executive Board determines that actions of a Caucus jeopardize the filing status of the Association or subject the Association to potential liability, the Caucus shall be directed by the Caucus liaison to cease and desist from said actions. If the Caucus fails to follow the liaison’s direction, then the Board may exercise the right to dissolve the Caucus in consultation with the Caucus leadership.
Finally, our Caucus seeks to strengthen protection of professional speech with a newly proposed Guideline. When the Board objects to Caucus formation, governance, and actions, the Board should welcome the opportunity to explain why to AALL members. Otherwise, the Board’s lack of transparency and accountability creates the appearance that professional speech has not received sufficient deference in the Board’s objections. Our Caucus therefore asks that the Board also adopt a Transparency and Accountability Guideline as Guideline XII, and renumber the Applicability Guideline as Guideline XIII:
Proposed Guideline XII. Transparency and Accountability of Executive Board Actions Regarding Caucuses
1. Denial of Caucus Applications, Petitions or Renewal Registrations. The Executive Board shall provide Caucus applicants or petitioners reasons for denying their applications, petitions, or renewal registrations within 10 business days of the denial. If the Board relies on a written opinion of legal counsel, the Board shall also include the opinion in its statement of reasons. Upon receiving the Board’s statement of reasons, a Caucus still seeking registration renewal shall have 10 business days to resubmit the registration. No prior action by the Board shall disqualify a Caucus applicant or petitioner from submitting subsequent applications, registration renewals, or petitions.
2. Governance. The Executive Board shall provide a Caucus a statement of reasons for recommending a change in its bylaws or governance structure. The statement shall include any written legal opinion that the Board relied on for its recommendation.
3. Dissolution. When the Caucus Liaison directs a Caucus to cease and desist from actions under the [revised] Dissolution Guideline, the Liaison shall provide the Caucus a statement of reasons for the direction. The statement of reasons shall include any written legal opinion that the Executive Board relied on.