NCA has received an increasing number of information requests on member discipline. Any member discipline process must include notice and an opportunity for the member to be heard. Generally, the process proceeds as follows.
COMPLAINT. Complaints can be received from any number of sources: members, employees or guests. The club should take each complaint seriously, consistent with the content of the complaint. For example, the club has the means to stop a member from harassing or touching an employee, and failure to act on such a complaint could lead to employment liability claims.
INVESTIGATION. Depending on the type of complaint, the investigation may be conducted by the general manager, club president, the club’s attorney or another appropriate person. The investigation should be well-documented and validate or draw into question the complaint and supporting information. Often investigations will lead to information demonstrating other areas of weakness within the club, and those areas should be followed up as well. For example, if an investigation of member drug use at the club leads to the discovery that employees, for fear of upsetting a member, do not typically report drug use, management must conduct employee retraining to ensure that mindset is corrected.
BOARD ACTION. Based on the information the board receives from the investigation, it should make a preliminary determination of the appropriate result: no discipline, suspension, expulsion, etc. The board should take into consideration the seriousness of the offense, the magnitude of the supporting evidence, prior offenses by the member, and the range of the club’s prior sanctions for similar offenses.
NOTICE. The member should be given written notice (consistent with the statutory and bylaw requirements) of the board’s investigation and preliminary decision on discipline. The notice should describe the member’s opportunity to be heard, referencing any statutory or bylaw requirements. Many statutes and bylaws require the member affirmatively request the hearing. However, those provisions often then require the club to set the hearing within a certain number of days, which can be inconvenient for the board. One alternative is to include within the notice letter a hearing time and date so that the board can plan in advance to be available.
HEARING. The member should have the opportunity to be heard in person or in writing. Absent extenuating circumstances, members should be allowed to bring witnesses and/or deliver written statements. There is not a consistent rule on whether the member can be represented by counsel. Most clubs require that a member advise several days in advance whom they intend to bring to the hearing so that the club may have counsel present if necessary. Remember this is not a legal process and attorneys are not required and often are not helpful.
CONSEQUENCE. After the hearing, the board affirms its decision and sends written notice of the final determination of discipline. The discipline imposed can be less than but not greater than the discipline proposed in the notice letter. Boards often take into consideration the information provided at the hearing to modify the discipline in some way.
APPEAL. If the hearing is conducted by, and decision made by, the Board, an appeal is likely pointless. One circumstance where an appeal would likely occur is when the general manager or club president suspends a person immediately, before a hearing. This should be drafted into bylaws, and it should be used with great discretion and only when the risk of not acting immediately might lead to greater harm. Some examples have included a club member leaving a gun in his unlocked locker at the club, and a parent using drugs at the club while the member’s small child wandered unsupervised.
Robyn Nordin Stowell, Esq., is a partner in the law firm of Sherman & Howard L.L.C. in Scottsdale, Arz. This is an adapted version of “How to Respond When Members Misbehave” from the summer 2016 edition of Club Director. This article is for informational purposes and is not legal advice. Read the full article here.
