Censure, noun. An official condemnation, reprimand, or expression of adverse criticism, usually by a legislative or other formal body, of the conduct of one of its members or of someone whose behavior it monitors. Webster's New World Law Dictionary, Wiley Publishing, Inc., Hoboken, New Jersey.
Purpose of Censure. A censure is the reprimand of a director for misconduct. A censure can be imposed immediately by motion and vote of the directors if, for example, the bad behavior occurs in a board meeting. "[I]n any case of an offense against the assembly occurring in a meeting, there is no need for a formal trial provided that any penalty is imposed promptly after the breach since the witnesses are all present and make up the body that is to determine the penalty." (Robert's Rules, 11th ed., p. 646.) In other matters where a censure may be appropriate, a noticed hearing can be called. In either case, the censure is recorded in the minutes. The minutes should reflect the reason for the censure.
Examples of Bad Behavior. Behavior worthy of censure includes, but is not limited to:
Powers Unaffected. While expressing strong disapproval of a director's behavior, a censure does not remove a director from the board, nor does it impair the director's ability to attend meetings, make and second motions, or vote on motions unless there is reason for recusing the director from a particular vote.
Not a Disciplinary Action. Unless some form of punishment is levied against a director, censure is not a disciplinary action. Houston Community College System (CSS) board member David Wilson had a history of criticizing fellow directors and filing lawsuits that cost CSS more than $270,000 in legal fees. As a result, the Board censured Wilson and barred him from holding officer positions on the Board or from receiving travel reimbursements. After the board publicly censured Wilson for his behavior at a 2018 meeting, he sought damages against CSS and fellow directors for mental anguish, punitive damages, and attorney’s fees, claiming the censure violated his First Amendment right to free speech. In a 2022 unanimous decision, the U.S. Supreme Court ruled against Wilson. The Court wrote that,
Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. Second, the only adverse action at issue before the Court is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same. The censure at issue before us was a form of speech by elected representatives concerning the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. The censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office... (Houston Community College System v. Wilson, 595 U.S. ___ (2022); emphasis added.)
The court also noted that censure dates back to colonial times and long-established precedents affirmed the right of public assemblies to censure their members. "[A]s many examples show, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Censures have also proven common at the state and local level." (Id.)
Removal from Office. If the errant director is an officer (President, Vice-President, Treasurer, Secretary, etc.), he/she can be removed from office by fellow directors since officers are appointed by and serve at the pleasure of the board. Removal as an office is not a disciplinary action requiring a noticed hearing since it is not the removal of a privilege. A director's appointment to an office is the imposition of additional duties, which the director accepts. Those duties can be shifted to another director any any time for cause or no cause at all.
Removal from the Board. In addition to censure, a board can request a misbehaving director's resignation. However, the director can refuse. If he/she refuses, the board's ability to remove a director is limited. This is also true for the courts. Courts can remove directors from office but only for specific reasons established by statute. The membership, however, can remove a director with or without cause by means of a recall election.
Recommendation. Boards should adopt an ethics policy for directors, committee members and managers.
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